National Security Bill

Debate between Damian Hinds and Jeremy Wright

2nd reading
Monday 6th June 2022 Commons Chamber

[Damian Hinds]

I will come back to my right hon. Friend’s point in a moment. To the point that the right hon. Member for Dundee East (Stewart Hosie) made, our position is that a public interest defence is just not the safest and best way for people to make disclosures, for some of the reasons I gave a moment ago.

[Sir Jeremy Wright]

Will the Minister give way?

[Damian Hinds]

If my right hon. and learned Friend will forgive me, I will not.

The existence of a public interest defence could mean that damage from the original disclosure could be compounded by further disclosures that had to be made to argue against and defeat that use of the public interest defence. That could itself then in turn be misused and mean that in some circumstances, even where there were egregious breaches of the law, in effect they could not be prosecuted. That is why, to respond to the point made by the right hon. Member for Dundee East, it is important that we look at the safe and proper channels and methods for making disclosures, where that is important, and there are times when it is. We are looking carefully at that.

To come back to my right hon. Friend the Member for South Holland and The Deepings—this is an important point in general—the defences in part 1 of the Bill provide law enforcement with several options for prosecuting disclosures where the person is acting for or on behalf of a foreign power or where the disclosure would materially assist a foreign intelligence service. That can include bulk disclosures. To be clear, with this Bill, the maximum sentence for an indiscriminate disclosure—a bulk data dump—will be higher than it is today if that act is done for a foreign power or the disclosure would materially assist a foreign intelligence service, even if not procured by that foreign intelligence service itself.

--- Later in debate ---

[Damian Hinds]

I do not think that this is an appropriate forum in which to discuss the detail of such measures, but I hope I can reassure my hon. Friend on that particular point. As I have said, this is to allow for cases in which such capacity is required owing to operational need, and it cannot be outside the United Kingdom.

A number of Members on both sides of the House have referred to the so-called STPIMs. These are a tool of last resort to prevent, restrict and disrupt an individual’s involvement in state threats activity. In the most serious cases, that could include restricting where an individual can reside, whom they can associate with, and where they can work and study. An STPIM will be used when intelligence exists to confirm that highly damaging threat activity is planned or being undertaken but prosecution is not realistic. As my hon. Friend said, with such measures it is extremely important to have the appropriate safeguards.

I want to reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) that STPIMs will not be imposed through ministerial decision making alone. There will be a process through the courts. A decision by the Secretary of State to impose an STPIM, once they are satisfied that the five conditions set out have been met, will be referred to a judge, and the court’s permission will be sought before an order can be made. The court is specifically tasked with checking that the ministerial decision is not flawed.

My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) and others spoke about civil legal aid for terrorists. Through the Bill, we will take action to restrict access to civil legal aid in England and Wales for individuals convicted of terrorism or terrorism-connected offences since 2001. However, I can assure my right hon. and learned Friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the hon. Member for Garston and Halewood (Maria Eagle) and others who have spoken about this that the restriction of access of civil legal aid applies only to offences involving a sentence of more than two years. In any event, all individuals subject to the restriction can apply for exceptional case funding, and applications will be assessed according to the legislative framework of whether an individual’s human rights may be breached without legal aid. The type of terrorism offence that had been committed would not have bearing on the exceptional case funding decision.

I need to spend a couple of minutes going through the amendments to the Serious Crime Act 2007, an important subject that a number of colleagues have brought up, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Wycombe. The context, of course, is that our intelligence and security services and armed forces do and must work in close partnership with international partners to maximise UK capabilities and their ability to protect national security on our behalf. A key part of that is sharing intelligence and data to support joint objectives.

However, it is possible that such intelligence, when shared in good faith and in accordance with all domestic and international law, could still be capable of contributing, even in a very small or indirect way that was not intended at the time it was shared, to an international partner’s engaging in activity that the UK would not support. The Serious Crime Act 2007 creates an offence where an act is done that is

“capable of encouraging or assisting…an offence”.

That means that in this scenario there is a risk of individuals facing criminal liability, even when they have operated in good faith and in accordance with the guidance and proper authorisation.

Put simply, the Government believe it is not fair to expect the liability for that unforeseen eventuality to sit with an individual officer of our intelligence services or member of the armed forces who is acting with wholly legitimate intentions. Instead, the liability should sit with the UK intelligence community and the military at an institutional level, where they are subject to executive, judicial and parliamentary oversight. The amendment at clause 23 therefore removes that liability for individuals, but specifically only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces. It does not remove liability at an institutional level for any activity.

[Sir Jeremy Wright]

As my right hon. Friend knows, I think there is no dispute across the House that some protection should be available for individuals in those circumstances. The question we have been asking is how different what clause 23 provides for is from what already exists in law. Clause 23 will ask for consideration to be given of whether there has been a proper exercise of a function. That must logically, therefore, relate to the behaviour of an individual, must it not?

[Damian Hinds]

My right hon. and learned Friend anticipates my next point to some extent. In instances where an individual has operated in good faith in compliance with domestic and international law and all proper process, they would then not face the risk of liability under the 2007 Act for something they could not have foreseen. In effect, we are adding greater certainty and specificity to an existing defence—the reasonable defence contained within that Act—by detailing scenarios where the offence will not apply, whereas the current defence is untested and imprecise.

The amendment means that, where an individual is working properly on behalf of our intelligence and security services and armed forces with an international partner to protect national security, they do not personally risk criminal liability if their work is later found to have been capable of contributing to unlawful activity in a way they would not have intended. That risk should remain with the Government, the services and the armed forces at corporate level, and that is what this amendment seeks to ensure.

A number of colleagues have raised the question of disinformation. They are correct that information operations are now a firm feature in the set of devices available to hostile states. There is direct disinformation, where talking points are put out on those states, on foreign affairs or on our domestic politics and society, but there is also the terrible technique of indirect disinformation, which is not necessarily intended to make anybody believe a particular line or narrative, but is simply aimed at causing division and discord in our country, to undermine our democracy and the cohesion of our society.

This Bill deals with people who carry out disinformation for a foreign state, but I want to be clear that legislation on the material itself belongs in the Online Safety Bill. We are looking at how to amend that Bill to account for disinformation material where that disinformation amounts to foreign interference, so that it can be treated as illegal material.