Tuesday 7th March 2023
(1 year, 9 months ago)
Lords ChamberNational Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 88-II(a) Amendment for Report (Supplementary to the Second Marshalled List) - (6 Mar 2023)
17:20 - Division on Amendment 185 - Ayes: 93 / Noes: 197 - Amendment 185 disagreed.
17:33 - Division on Amendment 188A - Ayes: 146 / Noes: 211 - Amendment 188A disagreed.
18:21 - Division on Amendment 193 - Ayes: 210 / Noes: 184 - Amendment 193 agreed.
19:06 - Division on Amendment 195 - Ayes: 132 / Noes: 180 - Amendment 195 disagreed.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the amendments in this group clarify the intent of the enhanced tier of the foreign influence registration scheme —FIRS. They ensure the tier remains proportionate, while achieving its national security objectives. FIRS was recommended by the ISC in its 2020 Russia report, and the Government committed in their response to bring forward such a scheme.
The enhanced tier of FIRS is a targeted regime, allowing the Secretary of State to require the registration of arrangements with specified foreign Governments or entities subject to foreign power control where she believes it is necessary to protect the safety or interests of the United Kingdom. The scheme will play a significant role in the deterrence and disruption of state threats activities by those countries, and entities linked to them, which are of greatest concern.
We know that these states will make use of a whole-of-state approach to covert activities, not just relying on traditional routes of intelligence organisations and undeclared agents. FIRS will be essential to gaining a greater understanding of the scale and nature of activity being undertaken for countries and their proxies that pose the greatest risks to UK interests and national security. The penalties for non-compliance will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through specified entities. It forces them to choose between registering openly or facing prosecution should their activities be known to the intelligence community. Finally, it offers potential for earlier disruption of state threats activity, where there is evidence of a covert arrangement between a person and specified foreign power or entity, but it is not yet feasible to bring charges for a more serious state threats offence.
Government Amendments 89 and 100 make clearer that the Secretary of State can narrow the activities requiring registration under this tier. This will allow us to tailor the registration requirements to the threat posed by the country or entity being specified.
I turn now to government Amendments 95, 104, 125 and 133 and supporting amendments. These amendments make changes to ensure that a proper provision is made for offences committed by those in unregistered arrangements, and employees and subcontractors who are carrying out activities under those arrangements, in both tiers of the scheme. The Government do not wish to unfairly criminalise those who reasonably believe an arrangement is registered and have taken all reasonably practicable steps to check that it is. This is particularly the case with employees of an entity which has made an arrangement with a foreign power or specified person, or for subcontractors carrying out activities under arrangements.
These amendments seek to address this issue by enabling a person—for example, an employee—to avoid committing an offence where they can demonstrate that they took all steps reasonably practicable to determine whether the activities were registered, and they reasonably believed that the activities were registered. We consider that in practice this will mean checking the public register or receiving evidence of registration from their employer in the form of confirmation from the registration portal.
Finally, government Amendments 147 and 151 also modify the individuals to whom an information notice may be issued under both tiers of FIRS. There are circumstances where a person may be arranging for another individual to carry out the activity. In these circumstances, it is important for the Secretary of State to be able to issue an information notice to an individual whom they reasonably believe is carrying out an activity pursuant to a registerable arrangement, even if they are not the person who has made the arrangement.
I have considerable sympathy with the aims of Amendment 91, tabled by the noble Lord, Lord Wallace of Saltaire. Wherever possible, Governments should strive to share what they know to reduce the regulatory burden on ordinary people and businesses. However, I believe that the schemes he has listed have different purposes and requirements, with relatively little overlap. Where there is a risk of unnecessary duplication, registration requirements can be targeted to avoid this.
Amendment 106, also tabled by the noble Lord, Lord Wallace of Saltaire, seeks to require the Secretary of State to produce an annual report on the impacts of the enhanced tier, including on international research collaborations. Again, I seek to reassure the noble Lord on this point, as the Government will keep the impacts of the scheme under review.
Amendments 166B and 203A, tabled by the noble Lords, Lord Purvis of Tweed and Lord Wallace of Saltaire, seek to require the Secretary of State to produce guidance within six months of the Act passing, and to prevent regulations made under the scheme being brought into force until three months after the publication of the guidance. Again, I agree with the spirit in which this amendment has been made but, as I will seek to reassure noble Lords, the Government have already committed to producing guidance during the implementation period, prior to bringing the scheme into force.
I come to Amendment 154A in the names of the noble Lords, Lord Anderson and Lord Carlile. This contains reasonable points which would bring certainty to the provisions and the Government support it.
I hope noble Lords will support these amendments.
Lord Wallace of Saltaire (LD)
My Lords, I speak to Amendments 91 and 106, which the Minister has mentioned. In this case, I speak very much on behalf of the academic and policy research communities, with which I was professionally engaged for some 40 or more years.
We are concerned not to impose too great a burden on those who are engaged in international research. The Minister will be very well aware of the commitments that have already been made for researchers engaged in international co-operation to provide information to the Government, and the concerns that there have already been, particularly about collaboration with countries such as China and Russia. That information is provided to government, and I remind the Minister that, as a member of a Government who are strongly against adding to bureaucracy and red tape, it should be possible for government departments to share information, rather than require it to be given twice to different departments.
I am conscious that the Home Office has a poor record in this regard; indeed, the entire Windrush affair happened because the Home Office refused to ask other departments for information on whether or not the people concerned had been in this country. This was clearly available at the DVLA, the Department of Health, the national insurance scheme, et cetera. There is a real problem in government about asking for the same information twice. The information asked for indeed overlaps, and I ask the Minister to assure us that the Government will look at this matter again and do their best to make sure that it does not add to the burdens to which those of us who are concerned with international co-operation have to relate.
The Minister will be well aware that the Government are also negotiating to rejoin the Horizon European international collaboration scheme for science, probably the most impressive and important network for international co-operation in the world. All the members of the European Union and the various other countries associated with it are listed as foreign powers, with the exception of Ireland, so this is a live question. I declare an interest: my son, a scientist at the University of Edinburgh, is currently engaged in international co-operation with universities and research institutes—one or two of them government-sponsored and financed—in France, Germany, the Netherlands and the United States. That is a small snapshot of the extent of that collaboration, if one were to go merely to the biology faculty at the University of Edinburgh. I suspect that there are some 30 or 40 other countries with which 100 scientists at the university are involved in various collaborative activities.
The purpose of Amendment 106 is to gain the strongest assurances from the Government that they will look at whether additional burdens are being imposed by the legislation on those who are unavoidably and actively—and desirably—engaged in international collaboration with institutes, universities and other bodies that are part of, or dependent on, foreign Governments in one way or another. We need active assurance on that. If the Minister is able to give that, we will not press these amendments further but I emphasise that it is important that this legislation does not over-add to the requirements to report normal activities. I remind the Minister that we are talking about a country that is determined to become a science international superpower, and that needs to be sure that it does not put obstacles in its own way that deter those in other counties from collaborating as it ensures its security.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the enhanced tier of FIRS requires the registration of arrangements to carry out any activity in the UK, or for future activities to be carried out in the UK, at the direction of a specified foreign power or entity. It also requires activities carried out by specified entities to be registered. I too am grateful for how the Government have responded, following concerns that this tier could deter legitimate activities. The Minister has introduced a series of concessions, as he mentioned in opening, which we welcome. There are outstanding issues, which I would be grateful if he could amplify in his answers.
On his Amendment 106, the noble Lord, Lord Wallace, spoke about the need for regular reviews, which may highlight barriers to international collaboration. He gave examples from his family—particularly his son, who is no doubt doing important research work up at Edinburgh University. The purpose of this is to ensure that the enhanced scheme does not make the same mistakes as other schemes around the world. I draw the Australian scheme to the Minister’s attention, which I understand is currently being reviewed, given some high-profile concerns about how it is working. I look forward to his answer.
Lord Sharpe of Epsom (Con)
I thank noble Lords for their contributions to this short but constructive discussion. I will turn straight to the amendments tabled by the noble Lord, Lord Wallace of Saltaire.
Amendment 91 seeks to ensure that registration under FIRS is not required when the arrangement is registered under other legislative requirements. However, somewhat contrary to the noble Lord’s assertion, I think there is a clear difference between FIRS and the National Security and Investment Act, the academic technology approval scheme and the export control regime. The Government are clear that FIRS fills a gap in our toolkit. It is worth highlighting that the focus of this enhanced tier is to provide scrutiny to UK activities directed by specified foreign powers—it is worth emphasising this; we are talking about the enhanced tier—and foreign power-controlled entities.
We consider that there will be limited circumstances where there is a risk of duplication, but we will work closely across government departments and potential registrants to keep the burden of registration to a minimum and inform our approach to using this tier of the scheme. The Government do not want to impose unnecessary burdens. We have committed to a consultation on the guidance ahead of bringing the scheme into force. If that process identifies risks of duplication, the power to target what arrangements and activities will need to be registered can be used to reduce unnecessary duplication. This will be considered on a case-by-case basis when specifying foreign powers and entities.
Lord Wallace of Saltaire (LD)
Can the Minister give us an assurance that he will consult with the academies, the Royal Society and Universities UK to make sure that the element of duplication is reduced to the absolute minimum? When I was in government, we talked about trying to introduce the principle of “Tell us once” when people were in touch with government. In some other areas, that has now been introduced. The principle is a very good one; we do not want universities having to fill in forms unnecessarily widely. If he can assure us that there will be active consultation with those affected, I will not pursue this further.
Lord Sharpe of Epsom (Con)
My Lords, I am happy with the reassurance that we are committed to consulting, but I cannot say at this precise moment who we consult with. As I say, if that process identifies a risk of duplication, the power to target what arrangements and activities need to be registered can be used to reduce unnecessary duplication. Again, I stress that we are talking about the enhanced tier of the FIR scheme in the National Security Bill so, if there is a little bit of duplication, I am sure he will understand that in the context of the overall Bill.
Amendment 106 tabled by the noble Lord, Lord Wallace, would require the Secretary of State to produce an annual report on the impacts of the enhanced tier; the noble Lord, Lord Ponsonby, also questioned me on this. I reassure both noble Lords that the Government recognise the importance of keeping the impacts of the scheme under consideration. Clause 82 already requires the Secretary of State to produce and lay before Parliament an annual report every 12 months after the scheme goes live. The legislation will also be subject to the usual post-legislative scrutiny process, which will consider how the scheme has worked in practice and how far its objectives have been met. I therefore ask that the noble Lord does not press this amendment.
Amendments 166B and 203A tabled by the noble Lords, Lord Purvis of Tweed and Lord Wallace of Saltaire, seek to require the Secretary of State to produce guidance within six months of the Bill passing, and to prevent regulations made under the scheme from being brought into force until three months after the publication of guidance. In answer to the noble Lord, Lord Purvis, I say that the Government recognise the importance of ensuring guidance for the public to support the implementation of the scheme. However, it is important that there are not undue restrictions placed on the development of this guidance, to ensure that the guidance produced is clear and targeted to those complying. I can say to him that a revised impact assessment is required before Royal Assent, so that will be forthcoming. He also raised the point about the German Stiftungen. If he bears with me, we will address this directly in the next group. I will also go further: the Government have committed to establishing expert panels to produce sector-specific guidance on compliance with FIRS. With that, I think I have answered all the questions.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.
Lord Sharpe of Epsom
“(A1) This section applies where a person (“P”) makes a foreign activity arrangement required to be registered under section 64(2).(1) P commits an offence if—(a) P carries out a relevant activity, or arranges for a relevant activity to be carried out, in the United Kingdom pursuant to the arrangement,”Member's explanatory statement
This amendment confines the offence in Clause 66(1) to the person who makes a foreign activity arrangement with a specified person.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to clause 67 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to clause 67.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment and Lord Sharpe’s other amendment to Clause 68(1) restrict the definition of foreign influence arrangements to arrangements with foreign powers.
Lord Sharpe of Epsom (Con)
My Lords, I have listened carefully to the debate about the political tier of the foreign influence registration scheme. I am immensely grateful to the House and others for their expertise and the constructive nature of the debate.
In response to the strength of feeling, this group of amendments refocuses the political tier back on its original intention: the influence of foreign powers over UK democracy. In its revised form, this tier would require registration only where a person is carrying out political influence at the direction of a foreign Government. That bears repeating—only where a person is carrying out political influence at the direction of a foreign Government. To be clear, this will take those being directed by foreign companies, foreign charities or other foreign entities entirely out of scope of the scheme.
I know that there has also been some debate about what it means to be directed by a foreign power. That is a high bar. Its natural meaning is an order or instruction to act. It could be delivered in the language of a request, but only where there is a power relationship between the person and the foreign power which adds an element of control or expectation to the request—for example, through a contract, payment, coercion, or the promise of a future compensation or favourable treatment. It is not enough for a foreign power to fund an activity. Generic requests, joint collaboration, or simply an alignment of views, absent this power relationship, will not meet the test for direction.
As part of this package of amendments, we have made some other changes, which I hope will be welcomed by noble Lords. A person will now have up to 28 days to register an arrangement under the political tier and does not need to register the arrangement before the activity takes place. This will give greater flexibility and ensure that we do not impede spontaneous activity.
We have narrowed the definition of “political influence activity” so that attempts to influence a Member of Parliament or equivalents in the devolved Administrations will require registration only when it is intended to influence them in their capacity as a Member of Parliament. Activity which seeks to influence these individuals in their personal capacity will not be registerable. Amendment 120 makes this clear.
As outlined on the previous group, we have made some minor changes to the offences to ensure that they work properly for subcontractors and that a person will not fall foul of the offence where they have taken all reasonably practicable steps to determine that an arrangement is registered.
I am pleased to say that we have accepted the recommendation by the Delegated Powers and Regulatory Reform Committee that regulations detailing the information to be published on the FIRS public register made under Clause 79 should be subject to the affirmative procedure. The public register is a vital element of the scheme. However, we recognise that there will be sensitivities in publishing some information and understand the call for an opportunity to debate this important matter.
I know that your Lordships have been anxious to scrutinise draft regulations under this part of the Bill. Last week, I published two sets of draft regulations setting out what information will be required from registrants and what information will be published. Importantly, these regulations confirm that we will not publish information where there is a risk that doing so would prejudice national security, put an individual’s safety at risk or involve the disclosure of commercially sensitive information. I have placed copies of these indicative regulations in the House Library.
This is accompanied by a government policy statement setting out how we envisage the other delegated powers being used. This includes an example registration form, which I hope noble Lords have found useful in thinking about how the scheme will work.
We are keen for the implementation of this scheme to be as collaborative as possible, which is why we will hold a further public consultation on the guidance required for the scheme prior to commencement. We will also continue to review the scheme and consider any further exemptions necessary to ensure that there is no negative impact on potential inward investment into the UK.
It is important to understand the wider context for FIRS. We are in an era of increased state-based competition. Foreign powers are seeking to influence British democracy to further their own interests, sometimes openly and sometimes covertly.
Foreign influence is not unwelcome. We recognise that Governments around the world seek to influence policies in the UK in a way that benefits their interests. Of course, the UK does the same. This type of influence, when conducted in an open and transparent way, contributes positively, and we recognise the critical role that this expertise plays in enhancing policy-making, employment and wealth creation. However, when foreign powers seek to influence in a way that is not transparent, this can have serious implications for the UK, posing risk to our open system of government and risking erosion of public confidence in political and government institutions.
We need to be more vigilant about this risk. Currently, foreign Governments can use others as proxies to attempt to influence British Ministers, MPs, officials, or indeed shape British public opinion, with only a limited requirement to disclose the hidden hand behind this influence, and no sanction if discovered. It is not unreasonable to aspire to a greater understanding of foreign influence; for the Government, parliamentarians and wider public to know where this influence is being brought to bear. FIRS seeks to address this gap, providing us all with more information about the scale and nature of foreign political influence in the UK. I look forward to the debate on the amended provisions and addressing the amendments that have been tabled.
Finally, I make noble Lords aware that we have identified an inconsistency in the treatment of ministerial decisions taken across the devolved Administrations that fall within the scope of this tier. I commit to tabling an amendment at Third Reading that will resolve that issue. For now, I beg to move.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who participated in this debate. I am feeling a little overwhelmed. The Government have moved a long way, as has been noted, on the FIRS scheme, which now tackles what it was originally intended to address. I thank all noble Lords for their probing amendments. I would particularly like to thank the noble Baroness, Lady Hayter, for paying special attention and noticing my deliberate error. I should have said—and I will repeat this because I repeated it the first time around—“foreign powers, including foreign Governments”.
With the leave of the House, and in answer to the noble Lord, Lord Beith, I will speak to Amendment 110A, standing in the name of the noble Lord, Lord Carlile, and signed by the noble Lord, Lord Anderson. The Government do not intend to require the registration of defunct foreign influence arrangements, so we urge the House to support the amendment.
Amendments 114 and 121, tabled by the noble Lord, Lord Carlile, and the noble Baroness, Lady Hayter, would remove the requirement to register foreign influence arrangements at Clause 68, and the meaning of “political influence activity” at Clause 70, from the scheme. These clauses are essential to the functioning of the revised political influence tier of the scheme, and for this reason I ask that the amendments be withdrawn. I will, however, go into a little more detail on the impact on the proceedings of a UK-registered party in Clause 70. It is not intended to cover every activity undertaken by a UK political party. The focus is on where foreign powers are seeking to influence formal matters of a UK political party, such as candidates’ selections and adoption of policy through third parties; but it will not, for example, cover decisions around venue changes for joint conferences. In this way, we believe that this scheme is appropriately targeted to focus on the arrangements and activities where transparency is most needed, while avoiding unnecessary bureaucracy. However, I have heard the noble Baroness on a number of occasions now and I will certainly be taking her points into account when we are developing the guidance.
I thank the noble Lord, Lord Wallace of Saltaire, for his Amendment 166A. This would require the Government to consult, and lay a report in Parliament, on the merits of expanding the foreign influence registration scheme to those controlled by a foreign power seeking to influence public policy. Again, we have sympathy with this amendment and, indeed, one of the reasons why the Government originally sought a broader scheme was to fully capture the proxies of foreign powers. I share the noble Lord’s interest in ensuring we remain responsive to the risks posed by covert influence, but I reassure him that the Government will keep the impacts of the scheme, and any need to expand it, under careful review. The timings for this are important and I cannot accept an amendment that may tie the Government to evaluating the scheme before it has come into force and had a chance to bed in. So I ask him not to press this amendment but reassure him that the Government will be able to use the annual review requirements to assess areas where the scheme could be strengthened.
In addressing the point raised in both this group and the last by the noble Lord, Lord Purvis, around the impact of the scheme on foreign political foundations, we did meet with representatives of the German embassy after the debate last week to discuss this scheme, and recognise the importance of the work carried out by political foundations such as the Konrad-Adenauer-Stiftung to promote political co-operation and the values of democracy and the rule of law. So I reassure the noble Lord that institutions such as these that operate independently of foreign powers will not have to register their activities. Receiving funding from a foreign power does not trigger a requirement to register under the scheme. Only where organisations are being directed by a foreign power through a power relationship to carry out political influence activities will that need to be registered. With that, I think that I have answered all the questions.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment and Lord Sharpe’s other amendment to Clause 68(1) restrict the definition of foreign influence arrangements to arrangements with foreign powers.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 68, page 47, line 19.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 71, page 49, line 13.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to omit Clause 72(1) and (2).
Lord Sharpe of Epsom
“(ba) a person the Secretary of State reasonably believes to be carrying out relevant activities, or arranging for relevant activities to be carried out, in the United Kingdom pursuant to a foreign activity arrangement within paragraph (a) or (b);”Member's explanatory statement
This amendment allows the Secretary of State to give an information notice to persons carrying out relevant activities pursuant to a foreign activity arrangement who are not themselves a party to the arrangement.
Lord Sharpe of Epsom
“(3A) An information notice may only specify information which the Secretary of State considers may be relevant to an arrangement or activity within subsection (1) or (2).”Member's explanatory statement
This amendment clarifies the information which may be specified in an information notice.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies that Clause 79(2) only relates to the power in Clause 79(1)(a).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment omits the definition of “foreign principal” and is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Pannick (CB)
My Lords, I added my name to some of the amendments tabled by the noble Lord, Lord Marks. I echo his thanks to the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Sharpe, for their constructive engagement with us on the damages clauses. I too am satisfied that Amendment 169, in particular, and the assurance that the noble and learned Lord gave in writing—which I hope he will repeat on the Floor of the House—address the main concern. I am impressed also by the eloquent point he made in Committee, that these clauses simply confer a power, or discretion, on the court, and I am confident that the courts will exercise those powers fairly and sensibly.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I am extremely grateful to the noble Lord, Lord Marks, for his amendments, and to the noble Lord, Lord Pannick, for his comments. I hope the House will agree that the Government have been in listening mode throughout this Bill, and that we have in this particular instance moved quite considerably to deal with what the Government consider to be justified observations by your Lordships.
On the general point, the reforms are designed to protect the public, to deter those who seek to exploit our security services for compensation and to reduce the risk that court awards or damages may be used to fund terrorism—perhaps the most serious harm that can be perpetrated against society, going to its very fabric. The noble Lord, Lord Marks, asked me to restate the purpose of the clause and I think I have endeavoured to do so in those words.
On whether the Government can give any assurance that these provisions will not be invoked on the basis of
“unproven allegations … from a foreign state”,
I draw your Lordships’ attention to the fact that this is a power in the court; it is entirely in its discretion. No court is going to act on anything other than proper evidence, so in the Government’s view there is no risk of the danger to which the noble Lord, Lord Marks, referred, because this is a court process with rules of evidence and proper and fair procedures.
With those two preliminary observations, I come to the central point that was at issue when we discussed this clause in Committee. We have listened to the concerns expressed by noble Lords that the legislation needed to ensure that no national security case fell into scope where there was no connection between the Crown’s conduct and the terrorist conduct of the claimant. I can repeat before this House the assurance in the letter I sent noble Lords today, to which we have already been referred, saying that there needs to be a causal connection between the conduct of the terrorist and the reduction in damages.
As to what criteria the courts should apply when considering these issues, I know that noble Members felt the courts would require further guidance. In the Government’s view, the courts do not require further guidance; they are well able to interpret and apply this legislation, especially in light of the amendments we have proposed. The Government have every confidence in the court being able to discharge its functions under these provisions.
Our courts are well versed in taking a wide range of relevant factors into account in determining liability and assessing the level of damages. There are a number of common-law considerations to which noble Lords referred in Committee which may indeed provide some guidance. We do not seek to exonerate the Crown in respect of its own culpability; we aim simply to ensure that the terrorist conduct is properly taken into account when calculating quantum.
I turn to what I think are the only live amendments on this part, Amendments 174 and 175. Those amendments would apply to the Bill’s provisions whereby a court would consider the context in which the Crown had acted to reduce a risk of terrorism, but their underlying intention seems to the Government to be to markedly restrict those provisions. As I understand it, the amendments seek to limit the consideration of the court to where the Crown’s actions had been commenced —the provisions use the word “instigated”—and the conduct was required to have taken place overseas at the instigation of a foreign state.
While the Government accept that there are difficulties in preventing terrorism when the action concerned needs to be taken overseas, there are so many different facts and circumstances flowing from the claimant’s own actions that the proposed amendments would significantly limit the effect of these clauses. In the Government’s view, the courts ought to have complete discretion to apply the clauses as they stand; a very tight restriction both as to instigation and to the requirement that the instigated conduct took place overseas would limit them inappropriately and improperly restrict the discretion courts should have under the provisions.
The Government further feel that there is scope in these amendments for some confusion. The two aspects, an overseas element and instigation, seem to be couched in language reminiscent of an exclusive list, quite apart from the difficulty of deciding exactly what one means by “instigation”. In practice, the Government feel that the courts should be left to exercise their discretion, as they surely will, without the limitation proposed by these amendments. That is the Government’s position on the amendments proposed by the noble Lord, Lord Marks, and I hope that in the light of what I have said, he will consider not pressing them.
There is one amendment by the Government—Amendment 181—which is proposed to ensure family proceedings in Scotland and Northern Ireland are excluded from the freezing and forfeiture provisions that are also part of this part, as with those in England and Wales. That simply corrects an oversight in the original drafting.
Having set out the Government’s amendments and why we are unable to accept the amendments proposed by the noble Lord, I commend Government’s amendments and ask the noble Lord to withdraw his.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have heard the Minister’s explanation. It is right that the amendments that were between us were Amendments 174 and 175. Having considered his point on the court’s discretion, I am not sure that the difference between us is so wide as to justify my testing the opinion of the House on this occasion. I shall not move those two amendments and beg leave to withdraw the stand part amendment.
Lord Bellamy
(i) involves the commission of a terrorism offence or other involvement in terrorism-related activity, and (ii) has a connection with the conduct of the Crown complained of in the proceedings,”Member's explanatory statement
This amendment, together with the other Government amendments to this Clause, would mean that the court may consider the matters in Clause 85(3)(b) only if there was a connection between the terrorist wrongdoing and the conduct of the Crown complained of in the proceedings.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on the Government amendments to Clause 85.
Lord Purvis of Tweed (LD)
It is perfectly within the rules of the Companion for noble Lords to seek points of clarification or elucidation from those who are speaking.
Lord Bellamy (Con)
I am again extremely grateful to noble Lords for their interventions and, in particular, for the support for the principle behind Clause 89 expressed by the Official Opposition, subject to the point about minor offences, which I will come to in a moment.
As a quick reminder, Clause 89 narrows the range of circumstances in which individuals convicted of specific terrorism offences can automatically receive civil legal aid services. This includes individuals convicted of terrorism offences punishable with imprisonment for two years or more as well as other offences where a judge has found a terrorism connection. It is important to note that this clause modifies but does not exclude legal aid, because there is still the route of exceptional case funding, particularly if convention rights are in issue. One of the fundamental convention rights— I think this at least partially answers the point raised by the noble and learned Baroness, Lady Butler-Sloss—is the necessity for a fair trial, in Article 6. The exceptional case funding route is still available in that regard. Phrases such as “excludes”, “denies”, “debars” and “no legal aid support” are not an accurate summary of what this clause achieves.
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble and learned Lord for giving way, but is it not the case that no one gets exceptional case funding simply because they otherwise would not get legal aid? The point made by the noble and learned Baroness was that it is unfair, so you will not get a fair trial. However, that does not ground exceptional case funding —unless the noble and learned Lord has a different view of exceptional case funding from the rest of us.
Lord Bellamy (Con)
My Lords, there might well be found applications for exceptional case funding; approximately 75% of such applications are successful each year. In any event, exceptional case funding is still available.
Viscount Hailsham (Con)
On the question of numbers and definition, what is the essential definition of exceptional case funding and how many cases have given rise to such a relief?
Lord Bellamy (Con)
I do not have the exact definition in front of me. It is a matter for the director of the Legal Aid Agency to decide. There is guidance on this, which applies in particular to cases of inquest and other areas where convention rights are at issue. I can supply my noble friend with further details in due course.
Lord Bellamy (Con)
I do not have that information with me, but about three-quarters of applications succeed.
At the risk of disturbing the atmosphere of good will that has, to an extent, prevailed this afternoon, your Lordships would have expected me to explore with the Government whether there can be any further movement on this clause and I am sorry to say that, subject to the important exception for victims of domestic abuse in relation to family and housing matters, they adhere to the clause and respectfully present it to the House.
The amendments tabled by the noble Baroness, Lady Ludford, seek to remove these clauses from the Bill altogether. The Government’s position is that the measures are necessary to ensure that our limited resources for legal aid funding are not directed towards individuals who attack society and democracy and, through their actions, commit acts of terrorism that seek to threaten and undermine the very democratic institutions which provide the benefit of legal aid. It is right that access to legal aid should therefore be subject to the provisions of this clause. Again, I understand that the Labour Party, in principle, accepts that approach.
It is certainly possible to argue, as the noble Baroness did, that if this applies to terrorism, why does it not apply to murder, the abuse of women, drug trafficking and other offences? Certainly, one can always advance an argument about where you draw the line. The line is drawn here at terrorism because of its particular threat to our society and democracy; that is the Government’s reasoning. As I have just said, it is not a blanket ban on civil legal aid because the exceptional case funding route ensures—in compliance with our obligations under the convention—that legal aid remains available when it is most needed to ensure access to justice.
Amendment 188, tabled by the noble Lord, Lord Pannick, would limit the restriction to where an offender has been sentenced to a term of imprisonment of seven years or more. I acknowledge of course the noble Lord’s concerns, but the Government oppose this amendment on the following grounds. The Counter-Terrorism and Sentencing Act 2021, introduced following the Fishmongers’ Hall and Streatham Hill terrorist attacks, expanded the sentencing powers of courts in relation to terrorist offenders and created more restrictive provisions for terrorist offenders whose offences carry a maximum sentence of more than two years. So, the two-year benchmark is already baked into legislation, and the Government feel that it is the appropriate benchmark in this instance.
The noble Lord’s seven-year sentence proposal would mean that a number of quite serious terrorism offences would escape: for example, the breach of a TPIM notice. It would also—by reference to sentencing, as distinct from the statutory definition of an offence—create quite a subjective difference between offenders when one has got more than the other: one is a bit above and one is a bit below, perhaps because one has had more previous convictions than the other, or for whatever reason. So, the Government think that the two-year benchmark in existing legislation is logical, defendable and clear and that it should remain. So, with regret, the Government are unable to accept Amendment 188 in the name of the noble Lord, Lord Pannick.
Amendment 187, tabled by the noble Lord, Lord Marks, would make the restriction not apply if the terrorism offence of which the individual had been convicted had no relevant factual connection with their application for legal aid. We quite understand the noble Lord’s intention behind that amendment, but, again, the Government cannot accept it. As the noble Lord, Lord Ponsonby, said, this is a point of principle. The Government have considered with great care the proposal put forward and consider that the fact of a conviction for a terrorist offence carrying a sentence of more than two years is a ground for restricting the route by which legal aid is granted, so we are unable to accept this amendment.
However, we have tabled government Amendments 182, 183, 184 and 186 to create an exception so that the restriction will not apply where a terrorist offender is a victim of domestic abuse and is applying for legal aid related to family and housing matters within a relevant time period. That would include such matters as pursuing protective injunctions in child custody cases, as well as the loss of a home or homelessness. Again, the question arises: if you have extended it there, why do you not extend it somewhere else? The answer, I think, is that one has to draw a line somewhere. Those are particularly serious issues in society as it stands, and that seems to the Government to be a sound basis for making an exception. It is not our position that it is relevant or wise to create any further exceptions.
Lord Purvis of Tweed (LD)
I would be grateful if the Minister could clarify a point from his earlier comments on exceptional case funding. The guidance on this on GOV.UK says:
“You could get legal aid for cases that would not usually be eligible if your human rights are at risk. This is known as exceptional case funding”.
Can the Minister clarify: under the Bill, will anybody who receives any sentence for any terrorism offence now automatically be eligible for exceptional case funding?
Lord Bellamy (Con)
No, that is not the Government’s position. There is a mechanism by way of exceptional case funding to ensure access to justice in an appropriate case.
Lord Purvis of Tweed (LD)
Then the point that the Minister referred to about the Bill is irrelevant, because the eligibility for exceptional case funding is regardless of whether the Bill is in place.
Lord Bellamy (Con)
It is not entirely irrelevant that exceptional case funding is always available for access to justice. That fact changes some of the comments that have been made about the restrictive nature of the Bill.
Lord Marks of Henley-on-Thames (LD)
My Lords, there is a sharp division of opinion on the general principles here. I share the disappointment of the noble Lord, Lord Pannick, at the position taken by the noble Lord, Lord Ponsonby, on behalf of the Labour Front Bench, particularly in view of the way the Labour Front Bench spoke in favour of the principles we enunciated in Committee. I do not propose to press Amendment 180, but when the time comes, I will seek to test the opinion of the House on Amendment 185.
Lord Bellamy
“(a) in relation to England and Wales, has the meaning given by section 75(3) of the Courts Act 2003; (b) in relation to Northern Ireland, has the meaning given by Article 12(5) of the Family Law (Northern Ireland) Order 1993 (S.I. 1993/1576 (N.I. 6));(c) in relation to Scotland, has the meaning given by section 135 of the Courts Reform (Scotland) Act 2014 and includes proceedings under the Children (Scotland) Act 1995 and the Children’s Hearings (Scotland) Act 2011 (asp 1).”Member's explanatory statement
This amendment provides a definition of “family proceedings” in relation to Scotland and Northern Ireland, as well as England and Wales.
Lord Bellamy
Member's explanatory statement
This amendment would remove the limitation on the availability of civil legal aid to an offender where the services are provided to them as victims of domestic violence in relation to a matter arising out of a family relationship in which there has been, or is a risk of, domestic violence.
Lord Sharpe of Epsom
“(7A) Condition G is met where—(a) the general case services are those described in paragraph 11, 33, 34 or 35 of Schedule 1 (services in relation to domestic violence and housing), and(b) the offender—(i) was or is a victim of domestic violence occurring after the relevant date, or(ii) is at risk of being a victim of domestic violence.(7B) In subsection (7A)—“domestic violence” has the meaning given in paragraph 12(9) of Schedule 1;“relevant date” means the date five years before the application date.”Member's explanatory statement
This amendment would allow offenders to access civil legal aid in relation to services relating to domestic violence and housing where they were at any time in the five years preceding their application, or at any time after their application, victims of domestic violence, or are at risk of being victims of domestic violence.
Lord Sharpe of Epsom
“Amendments of Terrorism Act 2000Schedule (Amendments of Terrorism Act 2000) contains amendments to the Terrorism Act 2000.”Member's explanatory statement
This amendment introduces the new Schedule inserted by Lord Sharpe before Schedule 17.
Lord Sharpe of Epsom
My Lords, Section 41 of the Terrorism Act 2000—hereafter referred to as TACT —confers a power on a police officer to arrest a person whom they reasonably suspect to be a terrorist. Under Section 41, officers are able to detain someone before charging or releasing them. The Section 41 detention clock allows them to do so for a maximum period of up to 14 days. It is possible for a person to be arrested under Section 24 of PACE then subsequently rearrested under Section 41 of TACT. This might happen, for example, when information comes to light during the investigation indicating that the offence of which the individual is accused has a terrorist connection. Under the current position, the time spent in detention under Section 24 would, in theory, not be counted towards the initial 48-hour permissible period of detention under Section 41. Though counting this time is, in fact, current operational practice, the Government are clear of the need to codify this practice and ensure that the safeguard continues to apply in all future cases. This is what this amendment does, while aligning the power relating to foreign power threat activity contained in Part 1 of this Bill.
Schedule 5 to TACT contains a power under which an officer of at least the rank of superintendent may, by a written order, give to any constable the authority which may be given by a premises search warrant issued by the court for the purposes of a terrorist investigation. The authorising officer must have reasonable grounds for believing that the case is one of great national emergency and that immediate action is necessary. We are seeking to amend Schedule 5 to TACT to create an ex post factum judicial authorisation safeguard. This will require the police to apply to the court for a warrant in relation to any relevant confidential journalistic material seized during the search that they need to retain for the purposes of a terrorist investigation. In the interests of national security, it is right that confidential material should be accessible in cases where the police can show that the action is necessary, proportionate and satisfies the legal tests in these provisions, while pursuing a terrorist investigation.
However, the Government also recognise that press freedoms are extremely important. Therefore, when such material is seized during a search that has been authorised under this urgent procedure, it is right that a warrant must be sought from a judge for its continued retention, and that an application for retention can be ex post factum, after the search itself has taken place. This approach reflects recent case law and ensures that the provisions provide appropriate protection for journalists. This amendment will also align this aspect of Schedule 5 to TACT with the equivalent urgent premises search power found in Schedule 2 to this Bill.
I turn to Amendment 192, tabled by the noble Lord, Lord Coaker. This amendment seeks to impose on the Secretary of State a duty to implement the recommendations of the Intelligence and Security Committee’s report on Russia. As noble Lords will be aware, the Government published their response to the Russia report on the day the report itself was published, 21 July 2020. Although the report did not itself enumerate specific recommendations, all the recommendations that could be identified in the report were addressed in the government response. A majority of the ISC’s recommendations had already been implemented by the Government before the report was published—for example, those covering co-ordination of HMG’s Russia work, close working with international partners and continued exposition and attribution of malign Russian activity. The then Home Secretary reiterated this in a Statement made to the House on 17 January 2022.
The Government’s response made our approach to tackling the recommendations in the report clear. By introducing effective new tools and powers for the police and security and intelligence agencies, this Bill can rightly be seen as delivering on commitments that the Government made in their response. Noble Lords will also be aware that the Government implement the vast majority of all ISC recommendations. However, there may be occasions when, for reasons including national security, we may not be able to take forward specific recommendations. We do not consider further reporting nor this amendment necessary, given the actions that the Government have already taken in response to the report.
Amendment 193, also tabled by the noble Lord, Lord Coaker, seeks to impose a duty on the Prime Minister to update the memorandum of understanding between the Government and the Intelligence and Security Committee to reflect the changes to the Government’s intelligence and security activities as a result of the Bill. Section 3(2) of the Justice and Security Act 2013 already provides for the ISC to make reports
“as it considers appropriate concerning any aspect of its functions”.
That already gives the ISC the ability to report on matters that fall within its remit so far as is consistent with the MoU—for example, to seek to avoid duplicating the work of other committees. Amending the Bill as proposed might be taken to imply that the ISC required explicit legislative nomination to propose changes to the MoU in relation to changes in intelligence and security arrangements brought in by Bills, which is not the case.
I turn to the amendment tabled by the noble Lord, Lord Wallace of Saltaire. I am aware that there are concerns about how the now closed tier 1 investor route operated—in particular, concerns that the route was used by those relying on funds that had been illegitimately acquired and those who may have posed a wider risk to the UK’s national security. It was because of those concerns that we committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity, or being engaged in serious and organised crime.
The Statement of 12 January represents the Government’s substantive response to the commitment to undertake a review and publish our findings. I am aware that some noble Lords would have preferred that the published review had included more information about specific individuals. However, we have had to act responsibly with regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border, and the vital work of our law enforcement agencies.
I stress that this Government have already acted decisively regarding the risks posed by the tier 1 investor route to the UK’s national security when we closed the route on 17 February 2022. The Government have also been clear that any future visa programme in the investment space must operate on a fundamentally different premise from the previous one, with a far greater focus on skills and impacts, rather than just cash in the bank. I beg to move.
Lord Coaker (Lab)
My Lords, this is the first opportunity I have had to join other noble Lords in thanking the Minister for the various significant changes the Government have made to the National Security Bill and the improvement they have brought.
I shall speak to my Amendments 192 and 193. Again, I thank the Minister for his various amendments in this group, which are also an important step forward. I will leave the noble Lord, Lord Wallace, who has signed my Amendment 192, to speak to his Amendment 194.
Amendment 192 deals with the recommendations of the July 2020 ISC Russia report. The Minister has addressed some of those but I have one or two questions to ask him before I turn to Amendment 193, which is the real priority for me in this group. The report highlighted the fragmentation of the various bodies. The Minister has spoken about how the Government seek to address that, but we would all like to know how the supposed co-ordination of the government response to the Russia report is being monitored to ensure that it is taken forward, and that what the Government say about the need for co-ordination to tackle fragmentation is made a reality.
The report highlighted again the prominence of dodgy Russian money in London. The Government will say, quite rightly, that they have at last taken action on that. How is that progress being monitored, so that we know how effective it has been, particularly in light of Ukraine? Similarly, can the Government reassure us that the various threats to democratic processes that the report highlighted are being addressed? I do not intend to press Amendment 192 to a vote—I am really just asking about the progress made since the report was published. As the Minister said, the Government’s response was published on the same day, but the question is how we maintain the progress that we all want to see on the various issues raised.
I will try to be as brief as possible on Amendment 193. The ISC’s annual report, published on 13 December 2022, clearly laid out the need to update the memorandum of understanding. That is what my Amendment 193, on which I will test the opinion of the House, seeks to do: to update the MoU the ISC operates under to reflect the changes made by the Bill and those made over the last few years. The Minister himself referenced the various government departments that now have responsibility for different aspects of security and intelligence, a point I will come to in a moment.
Let us remember that the ISC was set up in 1994 to allow for greater parliamentary oversight of these important matters, while respecting the obvious need for national security—an issue brought into sharp focus by the excellent Saunders report on the horrific Manchester Arena attack. The current MoU is out of date. The commitment made by the Security Minister in 2013 during the passage of the Justice and Security Act—that the MoU is a live document that is easily changed—needs to be honoured.
Who oversees the increasing devolution to policy departments of intelligence and security activities? How can parliamentarians scrutinise those when only ISC members with the necessary security clearance can access classified information? The Select Committees supposedly tasked with these various oversight roles are not suitable for that reason, rather than for any reason of capability. They simply do not have the security clearance to look at classified information.
The following departments and bodies are mentioned in the Saunders recommendations: the Department for Education, the Crown Prosecution Service, the Law Commission, the Home Office and the Ministry of Justice—and that is the open part of the report; for obvious reasons, we will not know what is in the closed part. If the ISC oversees all this, as it is perhaps expected to do in light of the recommendations, how will that work with regard to the Department for Education and the various other departments?
Our committee says that the outdated MoU is a real problem, but the Government say it is not. The ISC says it is a problem, but the Government simply dismiss it and say it is not. Can the Minister explain how members of a Select Committee—let us use BEIS as an example—can oversee classified information that informs the work of a body they are responsible for if they cannot see that information? Pages 42 and 43 of the Intelligence and Security Committee annual report lists numerous departments that have various security and intelligence functions they are supposed to oversee, but they will not be able to see the classified information because they do not have the security clearance. The ISC itself cannot oversee this because that is not part of the memorandum of understanding under which it works.
The committee was told, as I said, that the Government do not feel bound by statements made by the Security Minister to Parliament in 2013. So what weight should we give to any Ministerial Statements the Minister makes if, in a few years’ time, the Government can simply say, “We don’t give any weight to what was said in 2013”? Parliamentary Statements by Ministers of the Crown are supposed to be justifications of policy. We all rely on them. Courts rely on them. Many amendments to this Bill were withdrawn earlier because of what the Minister said at the Dispatch Box and the reassurances he gave, yet the Government are saying that they no longer agree with the 2013 assurances given by then Security Minister, so they will ignore them. We are talking not about policy—I understand how policy works—but about process and the need to update it. As I say, that is very disappointing, to say the least.
Lord Butler of Brockwell (CB)
My Lords, I want to support Amendment 193, moved by the noble Lord, Lord Coaker. He said that he felt the memorandum of understanding had not been renewed and brought up to date for no good reason. I believe it is worse than that. I think it has not been revised for a bad reason: because the Government have taken a dislike to the Intelligence and Security Committee. They have tried to restrict its activities, I believe for two reasons. First, the Government were piqued when there was pressure to publish the Russia report before the 2019 election and they did not want that. I suspect the reason they did not want it was that they did not want the discussion which the report introduced about the involvement of Russian apparatchiks in London politics. Secondly, I believe the Government were piqued because the committee did not elect as its chairman the person whom the Government wanted. It seems extraordinary that one could say of a responsible Government that these were their motives; they are childish motives. But the consequence is that in recent times the Intelligence and Security Committee of Parliament has not been used for the purpose for which it was set up.
If the Government are not going to use the Intelligence and Security Committee properly, they should save money and abolish it. But, of course, they will not do that because Parliament set it up, Parliament thinks it is important that this House and the House of Commons should have some insight into intelligence operations, and it would be unacceptable for the Government to abolish it. But they must choose either to abolish it or to use it properly. If they are to use it properly, they must update the memorandum of understanding and, as the noble Lord, Lord West, said, use it for the purpose for which Parliament intended: to give oversight by people who are fully screened within the ring of secrecy to report to Parliament. I think this is a much more important amendment than the face of it suggests.
Lord Sharpe of Epsom (Con)
My Lords, again I thank all those who have spoken on this group of amendments, and in particular I thank the noble Lord, Lord Coaker, for his generous remarks.
In terms of the Russia report, it is simply not true that we have not implemented the report’s recommendations. As I said in my opening remarks, the Government published a full and comprehensive response to the ISC report in July 2020, which is available online and which addressed all the committee’s key themes and recommendations point by point. The Government have responded to all the recommendations that could be identified within the report. The majority of the committee’s recommendations were already being implemented by the Government before the report was published: for example, those covering co-ordination of HMG Russia’s work, close working with international partners, and continued exposition and attribution of malign Russian activity.
I would say also that, as noted in HMG’s response to the Russia report, an assessment was produced and is available at a higher classification. Noble Lords will appreciate the difficulties of producing intelligence assessments for the wider public, given the risks of putting sensitive material, including information about our capabilities and methods, into the public domain.
Lord Coaker (Lab)
Before the noble Lord moves on to a different amendment, can he answer my question? How can Select Committee members, who do not have the necessary security clearance, possibly look at and scrutinise classified material on Parliament’s behalf?
Lord Sharpe of Epsom (Con)
If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.
Lord Beith (LD)
Has the noble Lord quite grasped the significant value of the ISC? I speak as someone who used to be on it. One aspect is its value to the Prime Minister, who gets a detailed assessment of aspects of security in circumstances where nobody else can, and he alone can do something about it. It is also an important guarantee to parliamentary colleagues in both Houses that things that cannot be disclosed are being examined by people whom colleagues trust, and that is very important in order to have some confidence that there is oversight going on.
Lord Sharpe of Epsom (Con)
I completely agree with the noble Lord. I certainly get it, and I hold the ISC in great respect, including the noble Lords in this House who are members. As I have said, the Justice and Security Act requires the Prime Minister to read the report before it is published. He gets an unredacted version, so he sees the full picture, and I have committed to take back the House’s concerns about attending the committee, via my noble friend Lord True.
If I may, I will turn to the tier 1 investor visa route, and I am afraid that I will have to repeat a number of things that I said in my opening remarks. The review of visas issued under the route took place relatively recently. A Written Ministerial Statement on 12 January set out the findings of that review, which reviewed visas issued between 2008 and 2015. That included that it had identified a minority of individuals connected to the tier 1 investor visa route that were potentially at high risk of having obtained wealth through corruption or other illicit financial activity. The Statement represented the Government’s substantive response to the commitment to undertake that review and publish its findings.
I am aware that the noble Lord, Lord Wallace, would have preferred that the published review included more information about specific individuals. I agree with his remarks about protecting our democracy and transparency. However, we have had to act responsibly in regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border and the vital work of our law enforcement agencies. I think that those are perfectly reasonable points to have made in regard to the tier 1 investor visa.
I appreciate that I have not given as fulsome answers as all noble Lords would like, but in light of the answers that I have given, I request that noble Lords do not press their amendments.
Lord Evans of Weardale (CB)
My Lords, it is an honour to follow the noble Lord, Lord Alton. I have considerable sympathy for what he says in view of the appalling behaviour of the IRGC. However, this amendment, as I understand it, would open the door to the proscription of state organisations, with proscription having originally been envisaged as a mechanism principally to bear down on non-state organisations.
I wonder therefore whether the Minister, when he responds, could clarify whether the proscription of state organisations brings with it unintended consequences that would be potentially quite difficult. For instance, will we say that anybody who is a member of a hostile intelligence service—which might be proscribed—is, by definition, committing an offence? What will that do, for instance, to intelligence liaison with people who are hostile to us, which sometimes happens? Does it create problems which would not be created for a non-state organisation, because these organs will be part of a very considerably bigger state entity with which we may have to engage at some level?
I am neither in favour with nor against the amendment. I am not quite sure exactly how it would work, and I would be very grateful if the Minister could clarify those aspects.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have participated in this very brief debate.
I think it would be helpful to give a brief overview of the concept of proscription as outlined in Part 2 of the Terrorism Act 2000. Put simply, proscription can play an important role in degrading the ability of terrorist organisations to operate effectively, and it sends a strong message that the UK is a hostile operating environment for such groups. The Terrorism Act 2000 gives the Home Secretary the power to proscribe a group if she has a reasonable belief that it is currently concerned in terrorism and it is proportionate to do so. The amendment seeks to replicate this within an explicit state threats context and requires that the Government develop and publish appropriate draft legislation.
The Home Secretary’s decisions on proscription can be legally challenged. As such, those decisions are supported by a comprehensive, evidence-led process which involves close consultation with other government departments and partners. This House will fully appreciate that developing a state threats proscription power will need to be considered fully.
Before I go on, I will refer to the IRGC, as it has come up in all contributions. I remind the House that the United Kingdom already sanctions the IRGC in its entirety. The separate list of proscribed terrorist organisations is kept under very careful review, but we do not routinely comment on whether an organisation is or is not under consideration for proscription.
In response to the illustrative points from the noble Lord, Lord Coaker, on whether there is a legislative gap in this area, I say that the National Security Bill creates a wide range of offences, tools and powers to counter state threats activity. In many respects, they cover very similar ground to a proscription-like power. For example, any person materially assisting a foreign intelligence service in their UK-related activities would commit an offence under Clause 3. Under the enhanced tier of the foreign influence registration scheme in Part 3, the Government could require the registration of all activities being conducted with those specified under the scheme. The Government will, with the agreement of Parliament, be able to specify a foreign power, part of a foreign power or an entity controlled by a foreign power. That means that those who are in arrangements with such organisations must register their activities or risk prosecution. The noble Lord, Lord Coaker, referred to my right honourable friend in the other place, the Security Minister, and I know that he is reassured by this.
However, as the Government have previously set out, we see the Bill as forming a new baseline for state threats legislation from which the statute will inevitably build over time as the threat evolves and diversifies. I am therefore grateful to the noble Lord for raising the issue and giving us the opportunity to debate it. I reassure him that I understand the reasons behind the amendment and the concern about the activities of state groups such as the IRGC. The Government of course share the noble Lord’s concerns, as was made clear in the Government’s statements on Iran International —to which the noble Lord, Lord Alton, also referred—which highlighted the potentially lethal operations of the IRGC taking place in the UK.
The amendment raises an important question of whether more needs to be done in this space, and I can reassure all noble Lords that this is a question that the Government are already considering carefully. The Government are committed to tackling all forms of state threats and to ensuring that our police and security services have the right powers to keep the UK safe.
Given, as I have said, that the measures in the Bill already have a similar effect in the state threats context to that achieved through the proscription for terrorism, we need to fully consider, alongside our operational partners, whether and how additional tools such as a state threats proscription power would add to the offences and measures in the Bill. We are committed to ensuring that any future legislation we pursue in this area has maximum effect.
Returning to the amendment itself, while it does not seek to set the ultimate scope of any legislative provision, I am afraid I am unable to accept an amendment that too tightly constrains our thinking in this important area. Linking proscription to hostile activity as defined in Schedule 3 to the Counter-Terrorism and Border Security Act 2019 would need careful consideration. I very much take on board the points of the noble Lord, Lord Evans, on this and on the scope. While that definition was considered suitable for that legislation, a different approach was taken in the National Security Bill, reflecting the differing nature of the tools and powers it contains. I would not want to pre-empt what might work best in the context of a potential proscription-like power. Furthermore, it is possible that to deliver an operational benefit, the tool may need to be created in a different way, and as such proposing a link to existing proscription processes may be unhelpful.
For these reasons, the Government cannot accept this amendment as drafted. I am also going to have disappoint the noble Lord, Lord Purvis: I am unable to comment on the Wagner Group; I am not qualified to do so. I hope the noble Lord is reassured that the Government are already looking carefully at this area and will therefore consider withdrawing his amendment.
Lord Sharpe of Epsom
“ScheduleAmendments of Terrorism Act 20001 (1) Section 41 to the Terrorism Act 2000 (arrest without warrant) is amended as follows.(2) In subsection (3)(b)—(a) for the words from “Schedule 7” to “2019,” substitute “a provision listed in subsection (3A)”;(b) for “examination under that Schedule” substitute “detention under that provision”.(3) After subsection (3) insert—“(3A) Those provisions are—(a) section 24 of the Police and Criminal Evidence Act 1984;(b) Article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));(c) Schedule 7;(d) section 1 of the Criminal Justice (Scotland) Act 2016 (asp 1);(e) Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019;(f) section 27 of the National Security Act 2022.”(4) After subsection (8) insert—“(8ZA) Subsection (8A) applies where— (a) a person is detained under this section in hospital, or(b) a person detained under this section is removed to hospital because the person needs medical treatment.”(5) In subsection (8A)—(a) for the words before paragraph (a) substitute “Where this subsection applies”;(b) in paragraph (a) after “hospital or” insert “(where this subsection applies by virtue of subsection (8ZA)(b))”;(c) in paragraph (b) after “hospital or” insert “(where this subsection applies by virtue of subsection (8ZA)(b))”.2 (1) Schedule 5 to the Terrorism Act 2000 (terrorist investigations) is amended as follows.(2) In paragraph 3 (power to search premises within cordoned area)—(a) in sub-paragraph (1) for the words from “Subject” to “superintendent” substitute “A constable”;(b) in sub-paragraph (2) for the words from “who” to “paragraph” substitute “may exercise the power in sub-paragraph (1) only”.(3) In paragraph 15 (search and seizure in urgent cases: England, Wales and Northern Ireland)—(a) at the end of sub-paragraph (1) insert “(subject to sub-paragraph (1A))”;(b) after sub-paragraph (1) insert—“(1A) An order under this paragraph giving the authority which may be given by a search warrant under paragraph 11 does not authorise a constable to retain confidential journalistic material.(1B) “Confidential journalistic material” means material which is excluded material by virtue of section 11(1)(c) of the Police and Criminal Evidence Act 1984.”(4) After paragraph 15 insert—“15A “(1) This paragraph applies where confidential journalistic material is seized by virtue of an order under paragraph 15 giving the authority which may be given by a search warrant under paragraph 11.(2) A constable may apply to a Circuit judge for the issue of a warrant under this paragraph.(3) An application under sub-paragraph (2) must be made as soon as reasonably practicable after the material is seized.(4) The judge may grant an application under sub-paragraph (2) if satisfied that conditions 1 to 3 are met.(5) Condition 1 is that the warrant is sought for the purposes of a terrorist investigation.(6) Condition 2 is that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or with other material, to a terrorist investigation.(7) Condition 3 is that there are reasonable grounds for believing that it is in the public interest that the material should be retained having regard to the benefit likely to accrue to the terrorist investigation if the material is retained.(8) A warrant under this paragraph is a warrant authorising the retention of confidential journalistic material.(9) A warrant under this paragraph may impose conditions on the retention and use of the material.(10) If the judge does not grant an application for the issue of a warrant under this paragraph in relation to any of the material to which the application relates, the judge may direct that the material is—(a) returned to the person from whom it was seized, or (b) destroyed.(11) “Confidential journalistic material” has the same meaning as in paragraph 15.”(5) In paragraph 18 (application to Northern Ireland) before paragraph (f) insert—“(ea) the reference in paragraph 15(1B) to section 11(1)(c) of the Police and Criminal Evidence Act 1984 is to be taken as a reference to Article 13(1)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),”(6) In paragraph 31 (search and seizure in urgent cases: Scotland)—(a) at the end of sub-paragraph (1) insert “(subject to sub-paragraph (1A)).”;(b) after sub-paragraph (1) insert—“(1A) An order under this paragraph does not authorise a constable to retain confidential journalistic material.(1B) “Confidential journalistic material” has the same meaning as in the Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act).”(7) After paragraph 31 insert—“31A “(1) This paragraph applies where confidential journalistic material is seized by virtue of an order under paragraph 31.(2) The procurator fiscal may apply to a sheriff for the issue of a warrant under this paragraph.(3) An application under sub-paragraph (2) must be made as soon as reasonably practicable.(4) The sheriff may grant an application under sub-paragraph (2) if satisfied that conditions 1 to 3 are met.(5) Condition 1 is that the warrant is sought for the purposes of a terrorist investigation.(6) Condition 2 is that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or with other material, to a terrorist investigation.(7) Condition 3 is that there are reasonable grounds for believing that it is in the public interest that the material should be retained having regard to the benefit likely to accrue to the terrorist investigation if the material is retained.(8) A warrant under this paragraph is a warrant authorising the retention of confidential journalistic material.(9) A warrant under this paragraph may impose conditions on the retention and use of the material.(10) If the sheriff does not grant an application for the issue of a warrant under this paragraph in relation to any of the material to which the application relates, the sheriff may direct that the material is—(a) returned to the person from whom it was seized, or(b) destroyed.(11) “Confidential journalistic material” has the same meaning as in paragraph 31.””Member's explanatory statement
The amendments to section 41 of the Terrorism Act reflect provision in Clause 27 of the Bill. The amendments to paragraph 3 of Schedule 5 amend powers to authorise searches. The remaining amendments to Schedule 5 restrict powers to retain confidential journalistic material to reflect provision in Schedule 2 to the Bill.
Lord Sharpe of Epsom
“Investigatory Powers Act 2016 (c. 25)
10 (1) Schedule 3 to the Investigatory Powers Act 2016 (exceptions to the exclusion of certain matters from legal proceedings) is amended as follows.(2) After paragraph 8 insert—“Proceedings under Part 2 of the National Security Act 20238A (1) Section 56(1) does not apply in relation to—(a) any proceedings which are relevant proceedings within the meaning of Part 2 of the National Security Act 2023 (see section 63(1) of that Act), or(b) any proceedings arising out of any proceedings within paragraph (a).(2) But sub-paragraph (1) does not permit the disclosure of anything to—(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or(b) any person who—(i) represents such a person for the purposes of the proceedings, and(ii) does so otherwise than by virtue of an appointment as a special advocate under Schedule 10 to the National Security Act 2023.”(3) In paragraph 20(2) (proceedings for certain offences)—(a) after paragraph (h) insert—“(ha) an offence under section 1 or 3 of the National Security Act 2023 relating to any information, document or other article which, or an offence under section 12 of that Act relating to any asset which—(i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or(ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur;(hb) an offence under section 18 of the National Security Act 2023 in relation to an offence falling within paragraph (ha);”(b) in paragraph (i), for “(h)” substitute “(ha)”.”Member's explanatory statement
This amendment makes consequential amendments to the Investigatory Powers Act 2016.
Lord Sharpe of Epsom
“(za) regulations under section 64(1B);”Member's explanatory statement
This amendment provides for the affirmative procedure to apply to regulations under Clause 64(1B), which is inserted by Lord Sharpe’s amendment to Clause 64, page 45, line 19.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the new Schedule inserted by Lord Sharpe before Schedule 17.