National Security Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

66A: Clause 29, page 21, line 33, at end insert “but, where the conduct or course of conduct is for the purposes of journalism or civil society activity, subsections (1)(a) and (2) may be satisfied only if the conduct or course of conduct is instigated by or under the direction and control of a foreign power within the meaning of subsection (2)(a) or (b).”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I do not get frightened easily, but we have talked a lot about nerves here, and walking into your Lordships’ Chamber earlier and seeing a dozen KCs, former judges and members of the intelligence community was slightly unnerving—thank goodness, they are leaving; that relaxes me enormously. I declare an interest as the mother of a journalist, although not one who works in this sort of area. A lot of journalists and organisations have contacted me to express serious concern about this National Security Bill, because things are not clear.

As it stands, there is a huge risk to whistleblowing and public interest journalism, and these legitimate activities—in fact, one could call them absolutely crucial activities for our democracy—could now put journalists at risk of serious criminal consequences. The so-called foreign power condition does not even distinguish between our allies and our adversaries. This will mean that journalists and NGOs will have to be careful when receiving information from any Government, even an innocuous press release from, for example, the United States Government or a local authority in France. Any information received from foreign sources which might reflect badly on the UK Government could put journalists at risk of prosecution under this law; worse, the journalist would commit an offence just by receiving the information, without even publishing it. That is utterly illogical. Journalists have a right to inform the public and the public have a right to know. The Bill is therefore potentially very damaging for the freedom of the press. We rely on journalists to report on corruption of all kinds, so we must amend the Bill. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I too did not speak at Second Reading. Unlike the noble and learned Lord, Lord Judge, who is no longer in his place, it was not because I was doing other things in the Lords but because I had not read the Bill. The fact that I have now looked at it brings me to the Committee today. Before I speak, I declare an interest both as a board member of the ABI, although that is not relevant to this amendment, and as a member of the Labour Party. The reason is that I speak to Amendment 68, to which I have added my name.

We will come to Part 3 later but the definition of “foreign power” in respect of Part 3, as spelled out in Clause 81(1), is in Clause 30. Clause 30(1)(e) covers political parties in government, or members of political parties that are in government. Schedule 14 exempts these, or at least the political parties in government, from the Clause 69 requirement to register. However, on a reading of it, it sounds as though that covers only foreign parties in government and not others. Therefore, I am not certain whether the Clause 14 exemption covers political parties in opposition. If it does not, political parties in opposition in other countries are covered as foreign powers.

I confess that some of the noble and learned Lords who have just left have been extremely helpful in giving me advice on this; in case your Lordships think that these are all my own words, I have had the benefit of extremely good advice on this. It sounds as though the exemption in Schedule 14 is only for the governing parties themselves and not necessarily for individuals of those parties or for those acting on behalf of political parties. It also appears that the exemption covers only registration and influencing, and probably not the activities of overseas political parties, even those from friendly states, such as Five Eyes states, with which of course we do a lot of business. So I think that those parties come under Clauses 65 and 66, according to the definition.

I hope the Minister will have enormous clarity when he spells this out in his reply, and I also hope that either the noble Lord, Lord Marks, or the noble Lord, Lord Purvis, will speak on this and can clarify it more than I can. It is interesting whether, if an overseas party—the US Democrats, for example—organised a dinner here, perhaps at Labour Party conference, that would need to be reported, and indeed with the threat of criminal proceedings if it was not. Would any of those political parties coming over here and having meetings with any of us count as activities and would they have to be reported within 10 days, and so on?

We also do a lot of joint working, in our case with the German SPD; we work on environment and trade, and a lot of other issues, and sometimes we buy them lunch—occasionally they buy us lunch. Is that covered by what would have to be declared? Similarly, would we have to report meetings, perhaps with MEPs from across the European Union when they were over here, or is it only those from non-governing parties? Therefore, if we have a mixed group of MEPs coming here, would those from governing parties be exempt but not those in opposition?

If the Minister thinks he is fairly junior down the pecking order, I think I am the tea lady who brings in the tea to barristers, so I hope he will be able to clarify all of this and that it is just me who is confused. However, as my noble friend Lord Hacking said earlier, this legislation should be easy to read. It does not just have to be right in what we want it to say; it is incredibly important that anyone who could be affected by it can pick it up. I am not a lawyer but I am pretty involved in politics, and if I can read it and not understand a word of it—I may be at the stupid end —I doubt that anyone else will be able to.

Part of the reason for the next issue is that there has not been any pre-legislative scrutiny on this Bill, which would have clarified some of this; nor has there been any consultation on these issues. If there are going to be a lot of reports, particularly on political parties in opposition coming over here, we risk having such an enormous number of reports that they become meaningless. If all these activities get reported, the actual dodgy ones, if you like, may be hidden in plain sight.

I know that, either in giving evidence somewhere or in writing, Edward Lucas looked at the case of anti-money laundering. He showed that there are 3,000 reports of anti-money laundering a day; quite a lot of them probably come from your Lordships’ House since we are all PEPs and must be reported on. However, it means that, if you start getting that number of reports, they are meaningless because you cannot see the wood for the trees.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

No, I do not believe that is particularly what I am saying. I suspect we will have to come back to this for precise definition purposes, and I am happy to commit to do so.

A further amendment has been tabled, seeking to add corporate or other entities to the foreign power definition. We believe this is unnecessary as it is already covered in the foreign power condition provision, which covers indirect links, under Clause 29(3). This explicitly provides that a person’s conduct could meet the foreign power condition if there is

“an indirect relationship through one or more companies”.

The legislation therefore covers cases where a person is receiving tasking through a company that is under the ownership, control or direction of a foreign power. It is vital that states are not able to circumvent the measures in the Bill by working through proxies to deliver harmful effects.

The noble Lord, Lord Ponsonby, asked specifically about state-owned companies and Huawei in particular. We have not included state-owned companies in the definition of a foreign power as these companies often have their own non-state objectives. Instead, the legislation captures circumstances where a person acts directly or indirectly

“for or on behalf of a foreign power”.

That includes cases where a person knows, or ought reasonably to know, that the activity they are conducting for a state-linked company is being carried out for or on behalf of the foreign power, or where they intend to benefit a foreign power. Offences may be committed by bodies corporate, including those established in other jurisdictions. In addition, the legislation provides that where an offence is committed by a company

“with the consent or connivance … or … due to any neglect”

of an officer of the company, that officer of the company may be guilty of the offence.

In answer to the noble Baroness, Lady Hayter, I have just mentioned that a number of the questions she raised and subjects she covered are more appropriately dealt with under the FIRS discussion we will have on Monday. That also applies to a number of the things raised by the noble Lord, Lord Wallace. As noble Lords know, that part of the Bill—Clauses 65 and 66 —was introduced late into the House of Commons, to which the noble Lord referred. I am sorry if the noble Lord, Lord Wallace, thinks I was frivolous as to the potential for right-wing threats to our national security. Just for the record, I am completely agnostic about from which end of the political spectrum threats are made to our national security.

Finally, noble Lords have tabled an amendment to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. It is important to note that the National Security Bill focuses on harmful conduct undertaken by a person, not the foreign power they seek to benefit. Actively excluding certain states could create an unwelcome gap in the legislation, particularly given that we know that states sometimes look to act through proxies. These amendments, therefore, could lead to us being unable to take necessary and appropriate action against harmful activities. Noble Lords will wish to note the case of Daniel Houghton, the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence services in 2010. Were NATO states to be excluded from the definition of a foreign power, cases like Daniel Houghton’s would not be captured by the offences and measures in the Bill.

For those reasons, the Government cannot accept these amendments and I ask noble Lords not to press them.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am afraid I do not accept the Minister’s idea that these things cannot be criminalised, so I will bring my amendment back on Report. I thank noble Lords for contributing to my amendment, particularly the noble Lord, Lord Black, with his expertise—which goes way beyond mine. I ask the Minister for a meeting to discuss this, because it is quite a fundamental point and bears further discussion. In the meantime, I beg leave to withdraw.

[Lord Wallace of Saltaire (LD)]

My Lords, we need to come back to the question of a definition of a foreign power. The idea of a potential threat from Canada, Australia or the Netherlands, let alone the United States—which already has military forces in bases in this country—appears to be entirely disproportionate. We know there are serious threats from a number of hostile countries. That is what the Bill needs to focus on. If it spends a huge amount of time and demands a huge amount of effort from all those affected by it, reporting on the conversations they have had in Paris, Copenhagen, The Hague, et cetera, it will be less able to work out what is happening with Afghanistan and others—the real threats. That seems to be part of what is mistaken in the design of the Bill, and we need to come back to that before Report.