National Security Bill (Third sitting)
Holly Lynch ExcerptsTuesday 12th July 2022
(2 years, 5 months ago)
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The Chair
Before I call the shadow Minister, it might be helpful if I clarify the order of debate that I normally expect to see. The person who has proposed an amendment moves it. By and large, anybody else then takes part in the debate, including the shadow Minister. The Minister replies to the debate and then the proposer gets a short whack at the end. On this occasion, I will call the shadow Minister, and then the Minister will have an opportunity to reply before the proposer rounds up.
Holly Lynch (Halifax) (Lab)
I am eternally grateful, Mr Gray. It is great to see you joining as Chair of this Committee on this particularly important piece of legislation. Thank you for the refresher on the order in which the Front-Bench spokespersons take part in proceedings.
We have had a highly unconventional start to this Bill Committee. I do not think anybody is more relieved to see the Minister in his place—perhaps the Government Whip. I really do welcome the Minister to his place and wish him all the very best. I know he has made every effort to get across the detail of the Bill in the incredibly short time he has had to prepare. I echo the sentiment we expressed on Second Reading and offer him the assurance that the Bill has our support. It is right, and increasingly urgent, that our laws are updated. We intend to be nothing but constructive in our scrutiny, deliberations and suggested additions, as we work together to ensure that the legislation is as effective as we all need it to be.
The Home Office’s impact assessment is clear that:
“The threat from hostile activity by states is a growing, diversifying and evolving one, manifesting itself in several different forms including espionage, foreign interference in our political system, sabotage, disinformation, cyber operations, and even attempted assassinations.”
I was struck by the testimony of Sir Alex Younger, the former chief of the Secret Intelligence Service, in last week’s evidence session. In response to a question about how threats to the UK have changed, he said:
“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason.
My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in subthreshold space—operations short of conventional war—to harm us.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11-12, Q21.]
Following detailed pieces of work such as the Intelligence and Security Committee’s “Russia” report and the Law Commission’s “Protection of Official Data” report, we have been calling for progress in this legislative area for many months, so we welcome the opportunity to work with the Government to get it right.
As the Minister has outlined, clauses 1 to 3 will introduce three new espionage offences: obtaining or disclosing protected information, obtaining or disclosing trade secrets, and assisting a foreign intelligence service. As was highlighted by the Government’s integrated review in 2021, state threats to Departments, national infrastructure, British businesses and private individuals are growing and becoming ever more complex. The situation in Ukraine and the ongoing Russian aggression have brought about an urgency to introduce new offences in this area, but make no mistake: this has been an emerging trend in contemporary national security threats for years.
The director general of MI5, Ken McCallum, in his joint address to UK businesses, journalists and academics with the director of the FBI last week, said that alongside the situation in Ukraine, the
“most game-changing challenge we face comes from the Chinese Communist Party. It’s covertly applying pressure across the globe… We need to talk about it. We need to act.”
I thank the director general and all those who are working so hard in our UK intelligence community for the work that they undertake around the clock to keep us safe. They have to respond to threats that most of us cannot begin to comprehend. We are grateful for their service, and it is at the forefront of our minds as we consider what they need from us in order to do their job. Therefore, these new offences, which reflect the changing dynamics of the challenges to our national security, very much have our support.
Clause 1 criminalises obtaining or disclosing protected information. Further to the Minister’s introduction to the clause, we heard from the witnesses last week about the need for the clause. It is a particular focus of the Law Commission’s “Protection of Official Data” report, and the commission confirmed that it was satisfied that the offences
“reflect well the recommendations that we made.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 50, Q94.]
In explaining why the offences are required, the “Microsoft Digital Defence Report”, which was published in October last year, identified that Chinese actors engaged in this type of activity mostly targeted data and intellectual property exfiltration. A broad range of sectors has been targeted, including comms infrastructure, the defence industrial base, IT, education, law firms and medical research. Interestingly, the report said:
“In the last year, espionage, and more specifically, intelligence collection, has been a far more common goal than destructive attacks.”
However, rather than commercial or industry targets, Microsoft’s data shows that
“nearly 80% of those targeted were either in government, NGOs, or think tanks.”
Its analysis suggested that,
“Think tanks often serve as policy incubators and implementers, with strong ties to current and former government officials and programs. Threat actors can and do exploit the connections between the more traditional NGO community and government organizations to position themselves to gain insights into national policy plans and intentions.”
The theft of research, policy development and datasets has been the focus of hostile state actors in recent months, so we are satisfied that there is a need for the new offence created by clause 1.
Holly Lynch
As the Minister just outlined, the clause creates an offence in relation to obtaining or disclosing trade secrets. The former deputy National Security Adviser, Paddy McGuinness, set the scene for this new offence when he gave evidence last week. On the trade secrets element, he said that it does “a very significant thing”, and continued:
“This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.”
He said:
“It does not feel as though we have quite the same volume of opencast mining of our intellectual property and economic value that we had, as was described previously by General Keith Alexander, the head of the National Security Agency in the US. He described the enormous volume—trillions of value—taken out of our economies. There still is a very high level, though, so there is more work to do on this, and it is a significant challenge to the corporate sector to do the right thing in this space, because of the difficulty that it represents.”
He also said:
“The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 25, Q50.]
All that provides an incredibly sobering outlook on the scale of the challenge that we face as a country.
Let me work through some of the detail further. We have some queries about this clause, as we did for clause 1. The seriousness of the clause is underlined by the fact that it creates an offence for which, if someone was found guilty of committing it, they would find themselves with a jail term not exceeding 14 years imprisonment, or a fine, or both. The Minister did not give us that extra bit of detail about the sentencing guidelines in the discussion about clause 1. I wonder if he might be able to return to that point in the discussion on clause 2.
Further to that, I confess that on my first reading and several subsequent readings of the clause, and having listened carefully to the Minister explain the detail of who can be prosecuted and where, it seems to suggest that this offence could be committed only by a UK national. I asked a former member of the intelligence community to have a look at it, and they felt that subsections (4) to (7) on who can commit the offence only seem to refer to a UK person, a United Kingdom national or a British citizen. Only on seeking a legal opinion was it judged that it could be interpreted to apply to non-UK nationals, but only if their criminal activity takes place in the UK. It does not apply where this activity is wholly outside the UK. That same legal opinion queried what it means to be “wholly” outside the UK, as that is unclear in this online age. It is also unclear why obtaining UK-related trade secrets unlawfully is not criminalised for non-UK nationals operating entirely from abroad, as is the nature of a lot of this type of activity.
We are not naive to the additional barriers to bringing someone to justice in these circumstances, yet such activity is no less wrongful because of nationality or where the criminal act takes place. With that in mind, I would be grateful if the Minister could confirm, first, for absolute clarity, that this crime can be committed by non-UK nationals when acting in the UK and we could prosecute them using this clause on that basis. Secondly, why does the clause not extend to criminalising non-UK nationals when they commit this offence in the theft of UK intellectual property and trade secrets outside the UK? Will the Minister clarify those points?
Again, we have the principle of “ought reasonably to know”, which warrants further consideration and clarity. On the “ought reasonably to know” threshold, I have it on good authority from former members of the intelligence community that the duping of individuals by nation states into doing the bidding of that nation state is not uncommon tradecraft. Are we satisfied that we have the right balance in that regard? Any clarity that the Minister can provide on the sentencing guidelines would be enormously welcome.
Simon Jupp (East Devon) (Con)
On a point of order, Mr Gray. Would you mind awfully if Members were to take their jackets off?
Mr Kevan Jones
I understand the thrust of the clause, but I would like some clarification on the definition of assisting a foreign power. I have one historical example, although I think it might not work. Eddie Chapman— Agent Zigzag from the second world war—was working for both sides. He was a UK agent and a Nazi agent. He got an Iron Cross for his misinformation work. In that case, he was not assisting a foreign power, because he was given dud information, but what about the case of a UK-based foreign diplomat who is working against us and supporting his or her nation, but is also then feeding information to us? It could be argued that that individual is working against our interests, because they are working on behalf of that other nation, but separately they might be the source of information. What would happen to that individual?
Gordievsky is a good example; he was in the Russian embassy in London for many years, feeding a lot of vital information to the UK, but his daily activities would have been prejudicial to the UK’s interests. How would the clause apply to individuals like that? Would they be separated out because of their benefit to us, although certain activities they are conducting would not be of benefit? I give just two historical examples, but there might be others in the future. Where would those individuals fall under the provisions in the clause?
Holly Lynch
As we have heard, the clause introduces a new espionage offence of assisting a foreign intelligence service. A person commits an offence if that person
“engages in conduct of any kind, and…intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”
Once again, we are broadly supportive of the clause. As highlighted by the Government’s own integrated review in 2021, threats to Government Departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. The clause goes a long way towards updating the threat posed by modern-day espionage and the changes are long overdue. The Intelligence and Security Committee’s 2020 Russia report stated:
“The current legislation enabling action against foreign spies is acknowledged to be weak. In particular, the Official Secrets Acts are out of date—crucially, it is not illegal to be a foreign agent in this country.”
Nevertheless, it is important that the Government clarify a number of different aspects of the clause. I highlight two recommendations from the Law Commission’s 2020 review of the Official Secrets Act. Recommendation 12.5 stated:
“In any new statute to replace the Official Secrets Act 1911, the requirement that the defendant’s conduct was capable of benefitting a foreign power should continue to be objectively determined. There should be no requirement to prove that the defendant personally knew or believed that his or her conduct had such capability.”
Will the Minister confirm that that requirement is compatible with the new offence established in clause 3?
The Law Commission also highlighted the danger of an individual unknowingly assisting a foreign intelligence service and then still being charged and convicted with the same offence as an individual who actively sought to assist a foreign intelligence service. This defence is currently accounted for in the Official Secrets Act 1989, as my right hon. Friend the Member for North Durham discussed. I appreciate that that Act is not being updated by this legislation, but the principle still stands. The Law Commission’s recommendation 12.24 stated:
“The ‘defence’, currently contained in section 1(5) of the Official Secrets Act 1989, of not knowing and having no reasonable grounds to believe that the material disclosed related to security or intelligence, should continue to apply.”
It is naive to think that foreign intelligence services advertise who they are and what they are planning to do with any information they are given by someone or in any engagement they may have. The duping of individuals is a somewhat common tool in espionage tradecraft. Let us say that an overseas business research company commissions a UK national to explain how the UK’s parliamentary processes work, but it transpires that the business research company was working for a foreign intelligence service. Under clause 3, could the UK national still be tried for assisting a foreign intelligence service?
We welcome the exemptions in subsection (7) that create an appropriate space for democratic obligations and diplomacy to take place, especially as the Bill makes no distinction between countries that are our allies and those that are hostile and seek to undermine the UK’s interests. However, I also note that the offence is explicit about the definition of a foreign intelligence service. On first reading, I had concerns that where someone is sharing information with a former member of intelligence services, the definition might not extend to criminalising that conduct. As the old saying goes, once a KGB officer, always a KGB officer.
However, given that the definition included in subsection (9) outlines that “foreign intelligence service” means
“any person whose functions include carrying out intelligence activities for or on behalf of a foreign power”,
I understand that anyone sharing information with former KGB officers, for example, would be committing an offence. I would be grateful if the Minister could confirm that that is the case.
Stephen McPartland
That was a range of great examples, and I will do my best to address them. The whole purpose of the clause is to provide our world-class intelligence agencies and law enforcement with the tools to respond appropriately to activity conducted in and against the UK by foreign intelligence services that wish to cause us harm. Although the Government understand and appreciate the intention behind the amendment, we propose to reject it.
The distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, clause 3(4) requires the conduct to be
“prejudicial to the safety or interests of the United Kingdom.”
That is to ensure that we target the most harmful activity overseas that has an appropriate link to the UK. For activity taking place inside the UK, there is currently no requirement for the activity to be prejudicial to the safety or interests of the UK. However, taking into account the defence in clause 3(7), foreign intelligence service activity carried out in the UK without even informal agreement or assent is inherently prejudicial to the UK’s safety or interests. Having to prove beyond a reasonable doubt why that activity is prejudicial risks creating a high evidential threshold that could, as we try to meet it, potentially compound the damage caused.
Clause 3(4)(a) has been drafted to ensure that the offence can prevent a wide range of activities from occurring and prevent threats from developing. Any legitimate activity would be covered by the three elements of the defence in clause 3(7), so there are appropriate safeguards in place. If a foreign intelligence service carried out activity in the UK and its conduct did not fall under clause 3(7), we must be able to call it out for what it is and prevent further harm from being caused. The current construction of clause 3(4) allow us to do exactly that, and the amendment risks reducing the operational utility of the clause as a whole.
We cannot allow the UK to become a hotbed for foreign intelligence services running covert and deceptive operations. I understand the examples that have been given, and I am looking into some of them, but the reality is that we need to be in a position to protect the intelligence services and give them an opportunity to go out there and deal with these people and the threats we face. As I have said, we have three protections throughout the whole Bill. We are coming up with lots of examples, but by answering each of them specifically, we will just provide our enemies and state threats with ways to work around the offence.
Stephen McPartland
The amendment clarifies that clause 3(7) contains a defence, rather than an exception, because it may be unclear which of the two it is as currently drafted. In doing so, two changes must be made to the clause. One will insert new wording to show that clause 3(7) is a defence, and the other will insert subsection (7A), which states that the defendant must adduce some evidence to establish that a matter in clause 3(7) is satisfied. The prosecution will then be required to prove that it is not met beyond a reasonable doubt.
We tabled the amendments to provide clarity to the operational community and to make absolutely clear the intention behind the offence. Clarifying that clause 3(7) is a defence places an evidential burden on the defendant to adduce evidence that one of the three conditions in subsection (7) applies to them. If someone raises a defence under subsection (7), the prosecution will need to prove beyond all reasonable doubt that the defence does not apply.
There are three separate elements to subsection (7). If it is an exception, the prosecution would be required to prove in all cases beyond reasonable doubt that none of the three elements applies. That would potentially be challenging to evidence, given the wide range of circumstances under which the matters in the clause may arise. In effect, the prosecution would have to prove a negative. Where an offence is believed to have been committed and a prosecution is pursued, subsection (7) being an exception would mean that all three conditions would need to be shown not to apply in each case that is brought forward for prosecution. That is not our intention, and the amendment will mean that defendants must raise a defence under subsection (7), and the prosecution must then prove beyond all reasonable doubt that it does not apply.
We have worked closely with our operational partners, law enforcement and the Crown Prosecution Service on this amendment to provide greater clarity about the scope of clause 3. By tabling this amendment to subsection (7), we can more clearly represent the policy intention behind clause 3 as a whole.
Holly Lynch
I have the Minister’s explanation. We considered the implications of Government amendments 1 to 4 earlier, and on that basis we are satisfied.
Amendment 1 agreed to.
Amendments made: 2, in clause 3, page 4, line 8, leave out “is” and insert “was”.
This amendment is consequential on Amendment 1.
Amendment 3, in clause 3, page 4, line 10, leave out “is” and insert “was”.
This amendment is consequential on Amendment 1.
Amendment 4, in clause 3, page 4, line 10, at end insert—
“(7A) A person is taken to have shown a matter mentioned in subsection (7) if—
(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and
(b) the contrary is not proved beyond reasonable doubt.” —(Stephen McPartland.)
This amendment provides that a defendant bears an evidential burden in relation to the defence in clause 3(7).
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Entering etc a prohibited place for a purpose prejudicial to the UK
Stuart C. McDonald
I beg to move amendment 50, in clause 4, page 5, line 9, at end insert—
“(7) No offence is committed under subsection (1) if the conduct is for the purposes of protest unless the conduct is prejudicial to the safety of the United Kingdom.”
This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this section.
Mr Jones
I sympathise with the amendment. In terms of legitimate protest, I may disagree with, for example, the peace camp at Faslane, but does it fall within the remit of the clause? Is that proportionate in an open and free society? I may disagree with what the protesters call for, but I would defend their right to make their opinions known.
We need clarity and to get the balance right between legitimate protest in the public interest and protecting security. The clause is detailed on access to prohibited areas. The clause states that a person commits an offence if they cause
“an unmanned vehicle or device to access”
an area. That is very clear. A drone, for example, would be prohibited. But what happens in the case of a trained eagle wearing a camera? I think that is covered by “device to access” an area. Will the Minister confirm that if someone strapped a camera to an eagle and sent it over a prohibited site, that would be covered by the Bill?
The clause is clear about inspecting
“photographs, videos or other recordings”,
but how wide is the area? It would cover someone standing with equipment that had access from 20 miles away, but what about somebody just observing through binoculars? Would that be covered? How big is the prohibited area? If we are not careful, the points that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has raised could fall within the scope of the Bill, or be used by the Government to stop legitimate protest or people who have an interest in opposing activities taking place at a certain site.
Holly Lynch
The SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and my right hon. Friend the Member for North Durham have outlined their thoughts on amendment 50. I will speak to clauses 4 and 5 more broadly.
Clause 4 establishes a new offence of entering a prohibited place for a purpose prejudicial to the UK. We welcome the measure, and the protection it will offer to sites and places that are vital to our national security. It has been a long time coming, and we have been falling back on somewhat antiquated legislation in the absence of such provisions. Giving evidence to the Intelligence and Security Committee in January 2019, the director general of MI5 said,
“The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc.”
In his evidence on behalf of the Law Commission last week, Dr Nicholas Hoggard said
“One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]
Clause 4(2) sets out that,
“a reference to inspecting a prohibited place includes—
(a) taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place;
(b) inspecting photographs, videos or other recordings of the prohibited place.”
We heard some more innovative examples, as my right hon. Friend the Member for North Durham likes to think outside the box, and as those acting on behalf of hostile states will continue to evolve and adapt to the legislation that we progress through this place.
Clause 4(3) explicitly states that the offence applies if the person inspects a prohibited place
“by electronic or remote means”,
and clause 4(4) states that the offence applies
“whether the person’s conduct takes place in the United Kingdom or elsewhere.”
The use of drones has been an asset in many ways, but inevitably a headache in others. I have raised concerns previously on behalf of constituents that it is at the extremes of distaste and disrespect for drone footage of serious or even fatal accidents to be taken by members of the public and shared on social media, or published by news outlets. It is with urgency that we need to update the laws that ensure national security is not compromised in the absence of up-to-date legislation, but for the reasons I have highlighted I hope this might also be the start of a conversation about drones, beyond their national security implications.
Clause 5 establishes that
“A person commits an offence if—
(a) the person—
(i) accesses, enters, inspects or passes over or under a prohibited place, or
(ii) causes an unmanned vehicle or device to access, enter, inspect 15 or pass over or under a prohibited place,
(b) that conduct is unauthorised, and
(c) the person knows, or ought reasonably to know, that their conduct is unauthorised.”
The Opposition welcome this provision, and see it as a necessary step to protect sites that are vital to our national security. I would like to probe the Minister on the stipulation that a person who commits an offence “ought reasonably to know” that their conduct is unauthorised. There is a concern that an individual may unknowingly stumble on a prohibited place, and then be prosecuted in the same way as someone actively seeking to undermine UK national security. Further detail on the sentencing guidelines might allow us to work through that uncertainty, but we have to work with what we have in primary legislation. The chances of that occurring are made more likely by the fact that this stand-alone offence does not need the foreign power condition to be met.
Let me provide some rare light relief in today’s proceedings. In 2016, civilians began to wander on to the grounds of several restricted air force and military bases in Canada while playing Pokémon GO, which is an augmented reality game where characters spawn randomly in the proximity of a user’s location—it was all the rage at the time. Documents released on request to the Canadian Broadcasting Corporation revealed the military’s confusion about what was happening at the time. One email from a major read,
“Please advise the Commissionaires, that apparently Fort Frontenac is both a PokéGym and a PokéStop”.
He went on to say,
“I will be completely honest in that I have no idea what that is.”
Just three days after the app’s release, two men drove a van on to an air force base near Toronto just before midnight. A corporal confronted the occupants and found them playing with their smartphones. In another incident, one woman was found at the Borden base playing the game, while her three children climbed over tanks. In their attempts to get on top of what was going on, the documents revealed that one colonel wrote,
“There’s a game out there taking off like gangbusters, and it requires people to move to digitally cached locations to get points”.
I do not know what “gangbusters” means. Another security expert recommended they hire a 12-year-old to help them out with the problem.
As part of the military response, at least three officers at different bases were assigned the task of playing Pokémon GO on site, and logging the appearance of every gym, PokéStop, and wild monster. In what I thought was a particularly enterprising spirit, in my constituency of Halifax’s namesake, they instead recommended that the PokéStop be relocated nearer to the museum, in the hope that it would increase footfall in a helpful rather than unhelpful way. I intended to share those examples by way of demonstrating that innocent players of Pokémon GO should be protected from the harshest of sentences, but on reflection, having read out the details, I am not so sure.
Back to the serious—I could not find specific examples here in the UK, but I can only imagine that there were some. We cannot afford to create carve-outs for Pokémon GO players that could be exploited by those acting on behalf of hostile states. The example outlines the need for appropriate consideration of such mitigations in the sentencing guidelines for such offences.
I note that the Law Commission proposed that in any reform of the Official Secrets Acts, a safeguard similar to that contained in section 131 of the Serious Organised Crime and Police Act 2005 should be introduced, requiring the Secretary of State to take such steps as he or she considers appropriate to inform the public of the effect of any designation order, including, in particular, by displaying notices on or near the site to which the order relates. That would ensure that an individual is given fair warning that he or she is approaching a location that is given enhanced protection by the criminal law. If I am not mistaken, that point was made by the right hon. Member for Dundee East on Second Reading. I hope that the Government will recognise the merit of doing so.
Maria Eagle
I have a short point of clarification for the Minister, if he would be so kind. It is about what is covered by the offence.
I am looking at clause 5(1)(a)(i), which states:
“A person commits an offence if…the person…accesses, enters, inspects or passes over or under a prohibited place”.
Clause 5(3) clarifies further:
“In subsection (1)(a) a reference to inspecting a prohibited place includes taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place.”
Does that include someone who is off the premises with binoculars or some device to enable them to look closely at the prohibited place, without being under or over it? Does that include the old-fashioned spy looking through binoculars and taking notes, rather than taking photographs, or is that not covered by the clause? It does not seem that it is, but I might have missed something. I will be grateful for clarification.
Stephen McPartland
I will move on to amendment 50. The condition inserted through amendment 50 removes the term “safety or interests of the United Kingdom” in the context of protests. It is the Government’s view that this is detrimental to the offence under clause 4 as it limits the range of conduct that would be considered prejudicial to the UK and risks creating loopholes that hostile actors could use to exploit using protest as a tool to disrupt sensitive sites in the UK. It is also likely to mean that sites that are not directly involved in the safety of the UK would not be afforded any protection where protests are being inappropriately used to disrupt the lawful functioning of the site. It is crucial that we retain the existing term if we are able to effectively protect the UK’s most sensitive areas from harmful activity.
In addition, the effect of amendment 50 would be that no offence would be committed by protesters if their conduct were not, as a matter of fact, prejudicial. In practice, this would not have any further effect on safeguarding protest activity because if the activity were not in fact prejudicial, a person cannot know, or be in a position where they ought reasonably to know, that that is the case. The amendment may be designed to ensure that no offence is committed unless actual damage results from the conduct, but it would not have that effect and the Government would not support a narrowing of the offence along those lines. While I understand the intention of the amendment, I do not see any requirement for it, given the fact that sufficient safeguards for legitimate protesting activity are already in place.
It is important to say that we will work with the police and the College of Policing ahead of commencement of the provisions to ensure that those implementing these clauses have the appropriate training and guidance to use these powers proportionately. I do not support the amendment and ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraws it.
Finally, clause 5 provides a second offence to capture harmful activity within the reformed prohibited places regime. A person commits this offence if, without authorisation, they engage in conduct at a prohibited place and they know, or reasonably ought to know, that their conduct is unauthorised. A person’s conduct is unauthorised if the person is not entitled to determine whether they may engage in the conduct, or if they do not have consent to engage in the conduct from a person entitled to give it—for example, if they walk past signage stating that access to the site is prohibited without authorisation, or if they take pictures from outside the site in spite of clear signage that that is not permitted.
Holly Lynch
This is a question I asked members of the UK intelligence community because I could not answer it: does a list of prohibited places exist in the public domain? Such a list might equip someone with the information prior to arriving at a site and enable them to determine whether a place is prohibited. It is not clear to me whether a list exists. Can the Minister clarify?
Stephen McPartland
I am grateful to the hon. Lady for her intervention, and I will certainly look at that. A number of sites will be prohibited in law, and some sites will not want people to know exactly where they are and what they are doing because they will become targets. Once again, there is a balance to be struck in relation to provision for the intelligence community.
Holly Lynch
I completely accept the sensitive nature of the subject and why we might not want to put such information in the public domain, but with respect to the “ought reasonably to have known” defence, I wonder whether we should ensure that people are equipped with the information that a site is indeed prohibited before they find themselves, perhaps accidentally, in a compromising position. How can we ensure that all that is communicated appropriately and sensitively so as to protect people from accidentally falling foul of these stipulations?
Stephen McPartland
It goes back to the reasonableness test: is the person conducting a reasonable activity, or is the activity prejudicial to the United Kingdom’s national security interests?
For a person to be guilty of the offence, the prosecution must prove beyond reasonable doubt that the person knew, or reasonably ought to have known, that their conduct—for example, in entering the prohibited place—was unauthorised, which provides protections. Unlike the clause 4 offence, there is no requirement that the person have a purpose prejudicial to the safety or interests of the United Kingdom to commit this offence. That ensures that action can be taken in cases when a person has knowingly carried out unauthorised conduct at a prohibited place, such as trespassing, without having to consider whether that person has a purpose prejudicial to the United Kingdom’s safety or interests, which requires a higher threshold of potential harm to be demonstrated.
To take account of the fact that a purpose prejudicial to the safety or interests of the United Kingdom does not need to be proven, there are differences between the conduct caught under the offence under this clause and the offence under clause 4. For example, this offence does not criminalise the inspection of photographs of prohibited places, and it is not capable of capturing conduct in the vicinity of a prohibited place.
The Government do not consider it proportionate or necessary to capture the inspection of photographs under this offence, given that inspecting a photograph that has already been taken of a prohibited place cannot be classed as inherently unauthorised activity. Given the wide range of legitimate activities that could be undertaken in the vicinity of a prohibited place, and given that there is no inherent need for walking past a prohibited place to be authorised, the offence under clause 5 does not capture activity in the vicinity of a prohibited place.
The second prohibited places offence under clause 5 is a crucial addition to the tools our law enforcement agencies and courts can use to capture the full range of harmful activity that can take place at prohibited places. Even though this offence is not aimed at capturing the most damaging activity around those places, as clause 4 does, and attracts lower penalties, it is equally important that we introduce an offence that can capture activity that may seem less severe, but is still capable of interfering with and damaging the operations and security of the United Kingdom’s most sensitive sites.
This offence should be seen as part of a tiered approach alongside the new police powers to protect those sites, which I will come to, and it will ensure that law enforcement has a range of tools and powers at its disposal to protect those sites.
Stephen McPartland
The powers set out in clause 6 allow for a police officer to exercise specific powers in order to protect prohibited places. A person commits an offence if they fail to comply with an order imposed under the police powers in relation to a prohibited place. Those powers include the ability to order a person who has accessed or entered a prohibited place or is in the vicinity of one to leave it immediately. Under these powers, a police officer may also arrange for the removal or movement of a vehicle or device from a prohibited place or an area adjacent to a prohibited place.
Alongside the police powers, the clause provides that is an offence to fail to comply with an order given by a constable under those provisions. As an example, if a person is circling the perimeter of a prohibited place and taking detailed photographs of the infrastructure and activities within, the police may order this person to cease to engage in that activity and leave the area immediately, given that they are carrying out an inspection of the site and their activity is in an area adjacent to the prohibited place.
In order to exercise any of those powers, a constable must reasonably believe that doing so is necessary to protect the safety or interests of the United Kingdom. For example, exercise of the powers may be necessary for the prevention of activity that could harm or disrupt the operations or functioning of a prohibited place. In most instances, we consider that the use of these powers will be intelligence-led and that the police will be called to prohibited places where there is a concern identified from the site itself.
The aim of the police powers in relation to prohibited places is not to impede legitimate activity, such as lawful protest, but rather to catch and deter activity around prohibited places that is prejudicial to the safety or interests of the UK. That includes activity that is harmful to and disrupts or impedes the functioning or operations of a prohibited place, such as scaling fences, blocking access points or wider disruption to the critical and sensitive work being conducted at these sites. Ahead of implementation, my officials will work with the police and the College of Policing to ensure that clear guidance and training are in place to ensure that the powers are used reasonably and proportionately to protect these sites.
The additional powers are a critical part of the reformed prohibited places regime and provide significant operational utility, given that they enable law enforcement to prevent harmful activity from taking place at these sensitive sites—activity that could be a precursor to state-threat offences such as espionage or sabotage. Without their inclusion, the UK will be less equipped to counter hostile activity as it happens, which will leave these sites more vulnerable to state-threat activity or wider threats that do not have a state link.
Holly Lynch
Subsections (1) and (2) set out the powers that police constables can exercise to protect a prohibited place, which include ordering a person to cease their activity or move away from the site. Subsection (3) provides that a constable must reasonably believe the use of those powers to be
“necessary to protect the safety or interests of the United Kingdom.”
This includes prevention of activity that could harm or disrupt the operations or functioning of a prohibited place in a way that could jeopardise the safety or interests of the United Kingdom.
The clause gives the police powers to direct people to stop using devices and leave the area, but when I discussed its detail with a recently retired senior police officer he observed that the clause seemingly does not confer on the constable the power to seize the device or any video or images or, indeed, sketches or footage off the back of an eagle taken by the device. Can the Minister explain whether that is the case? If so, would the clause not benefit from an addition to prevent any such sensitive material from leaving the scene with a person instructed to take it with them?
I find it curious that all police officers tend to be referred to as “constable” in legislation, despite the fact that constable is just one of several possible ranks. Indeed, there is some variety in the responsibilities for keeping sites defined as prohibited places safe. The Civil Nuclear Constabulary, overseen by the Civil Nuclear Police Authority, is the armed police force in charge of protecting civil nuclear sites and nuclear materials in England and Scotland. The Ministry of Defence police is responsible for law enforcement and security of military bases in the UK; as it says on the tin, it reports into the Ministry of Defence.
Will the Minister confirm that the powers conferred in clause 6 extend beyond those officers serving in regular police forces that report to the Home Office? It is the specialist forces sitting outside of those structures that tend to pick up the lion’s share of the responsibility for protecting prohibited places. Could he confirm that the powers apply to all officers, regardless of rank, and where the military also provide defences at their own sites, or are at least partnering in that work? Could the Minister explain whether the powers extend to the military, or are exclusively for police officers?
Finally, the powers conferred will also allow a constable to arrange for the removal of a vehicle from a prohibited place “or an area adjacent” to it. Does the Minister envisage any further guidance on what constitutes “adjacent to a prohibited place” to assist a constable in determining distance, proximity, and so on, in making those judgments and communicating those clearly in a reasonable way to members of the public?
Stephen McPartland
I am grateful to the hon. Lady for the very good points she has raised. My understanding is that the powers currently apply only to police officers, not to members of the military. It is very clear throughout the clause that it refers to “a constable”, and it is referenced as “Powers of police officers”.
National Security Bill (Second sitting)
Holly Lynch ExcerptsThursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
Scott Mann
Q
Sam Armstrong: This Bill will do an awful lot to deal with it. There are some offences in the Bill that are drawn extremely broadly and will allow the security services to take a knife to whichever problems they would like.
The Bill does not do certain things that other countries have done. For example, Australia introduced the Foreign Relations Act, which allowed the central Government to terminate relationships that public authorities had entered into with foreign states where they were undermining Australia’s foreign policy position. That is a power that I know Australian officials have been keen to encourage the British Government to replicate.
In terms of assisting foreign intelligence services, which I think is by far and away the most broadly applicable offence in the Bill, and the trade secrets offence, there are broad powers there and the Government deserve commendation for bringing those powers before Parliament, although not before time. The security services have been keenly pushing for them and they will appreciate them in doing their work.
Holly Lynch (Halifax) (Lab)
Q
Carl Miller: That is a great question. We can start by cleaning up the grubby world of spam. Often, when talking about online influence operations and disinformation, we descend into this kind of rarefied world of grand geopolitics, but it has as much to do with a very wide array of services and companies. If anyone googles “buy retweets now”, you will be able to see what I am talking about.
There are a tonne of companies that operate in plain sight, selling social media manipulation as “social media services”. You can buy fake followers; you can buy fake engagement. I looked it up on the way here; as of about 10 minutes ago, there was a company selling positive comments in Ukrainian on Instagram—mostly, they claim, by users from Ukraine—for $78 per 1,000. That is on the light net; we are not even talking about the services that are cryptographically secured or anonymised.
There is an array of these kinds of operations. An almost shadowy grey-area marketplace has emerged, which radically lowers the barriers to entry into doing those kinds of activities. That has always been there, but the consensus has emerged among researchers like me that, over the last year or two, the actual number, sophistication and variety of those services has increased quite dramatically. To be honest, if we were to really try to genuinely start increasing the cost and penalties for the actors that do that kind of thing, we would have to target that entire industry as participants in it.
Lastly, in pulling apart some of the operations regarding Ukraine, our hunch is that state-backed activities have likely made use of those exact same services. We will see states maybe rolling out capability outside of state, setting up as private companies, and selling those capabilities back into state.
Holly Lynch
Q
Carl Miller: I have spent 10 years saying the social media companies have not been doing enough on just about every matter of importance that I can possibly think of. They are doing a tremendous amount more now than before, but that has a couple of implications.
First, we have dramatically overfocused on Facebook and Twitter. There are reasons for that, and a lot of them are the fault of researchers like me. We research Facebook because it is big, and Twitter because it is easy to research. If you have a look at the journalistic stories that drive the awareness and debate, they are very often furnished by exposés and revelations about those two platforms.
If I were to point to one part of the internet that I am genuinely afraid about, it would be Wikipedia. If I were an information operation officer, I would have no idea why I was mucking around with Twitter. In Wikipedia, we have an open platform that is protected and serviced by an open community of people who can freely join. If I were a state, I would employ a phalanx of people to contribute completely legitimate edits to Wikipedia and build up their standing in the community, and then they could run for office within Wikipedia and start using the powers they would gain to change what is on Wikipedia and the policies that govern it.
There are lots of other such open-source communities, many of which, including Wikipedia, inform and drive the decisions that the tech giants make. They have not managed to build the kind of internal defensive teams that a Facebook or a Twitter can to try—often in the shadows and in secret; we do not know enough about what happens—to clear that kind of stuff off at scale.
Holly Lynch
Q
Sam Armstrong: The problem is that it is so broad, in that there are problems even in this building. The security services will tell you privately that—far beyond Christine Lee, who obviously was named—there are agents of the Chinese state here who are known to the security services and in whom they have taken an active interest.
There are huge problems in academia; China has made no secret of its interest in academia. When the Zhenhua database leak happened a couple of years ago—this was a database that China was using to identify potential targets of intelligence activity—it was no surprise that they had targeted think-tanks and academics very carefully.
The third and final area that China is very, very interested in is anything related to technology, and to the areas that it would like to obtain and that it set out in its “Made in China 2025” programme. Those areas are twofold. The first is universities and open research. There are researchers in the UK right now who are, frankly, working with branches of the Chinese navy to come up with devices to track nuclear submarines around the world. That is as dangerous as it comes to our national security, and that work is going on in the open. I am also aware of British companies that are making engines—or casings for engines in this case—that they have admitted are good for nothing other than for engines in tanks. There are grievous concerns about the whole level.
Where do you start first? Well, that is a choice between those that are dangerously undermining our national security and tech, and those that are dangerously undermining our democracy in accessing this building and in terms of the influence and space in which they are influencing our democratic process.
Damian Hinds (East Hampshire) (Con)
Q
Carl Miller: One suggestion that I was going to make today was that we have nothing like a comprehensive picture. This is often extremely sporadic project-based research, and it is usually platform-specific, even though we know that, in all likelihood, that is not how the campaigns work—they will work across tonnes of platforms all at once. We will see only certain kinds of campaigns. We are broadly better at seeing broad-based campaigns addressing quite large slices of a population, but again, if we were to put ourselves in the mind of an influence operator, there would be much more targeted campaigns directed towards—if you will—higher-value targets as well.
What we know about scale is that many more countries than those we talk about are doing it. I understand that in the last Indian election, accounts attributable to every single mainstream political party were taken down by Facebook during that campaign. It has emerged as an almost mainstream campaigning tactic.
Scott Mann
Q
Louise Edwards: There is a key principle here, which is that you could hope there is a link between increasing the penalty that can be imposed for an offence and therefore disincentivising or deterring people from committing that offence. That seems like an in-principle link that you would want to see made. That is what perhaps the Bill is aimed at creating.
The measures in the Bill—the offences relevant to elections that are in it—are offences that the police will have to investigate and that will then go through the courts for prosecutions, so really key to making the provisions work effectively is to ensure that the police have the capability and capacity to take them forward, investigating them and passing them on to prosecutors when appropriate.
Holly Lynch
Q
Louise Edwards: Do you mean a potential problem in the sense of a foreign state interference issue?
Holly Lynch
Yes, foreign interference.
Louise Edwards: Okay. If we were made aware of that, it is likely that it would be from the intelligence community or the police, because they are likely to be the ones that would have that information.
If we think about the sorts of offences that are being considered in the Bill, they are broadly around, if we look at the political finance ones, for example, the people who put money into the political system. In political finance, you have the people who are making donations and the people who are receiving the donations, that being the political parties, campaigners and candidates. For donors—the people putting the money into the system—the regime as it currently stands has a set of criminal offences that broadly sit with law enforcement rather than with the commission.
We, as a civil regulatory body, have a set of sanctioning powers for political parties and campaigners, so if we were to be notified of an instance of foreign interference—money coming into the political system from a foreign state power, say—our first response would be to discuss the matter with law enforcement, which would then decide whether to pursue it.
Holly Lynch
Q
Louise Edwards: That is how the process would work. It is very common for civil regulators to have a route into law enforcement for anything that is a criminal matter. In fact, a number of offences in electoral law are both civil and criminal, so even now, before the Bill goes through, we would hand anything involving a foreign state power over to law enforcement to take forward. If the Bill goes through, we will have to hand that over to law enforcement anyway, because the offences listed in it will be investigated only by law enforcement, not by us.
We have a good, established process to notify police forces around the UK if we think that a matter is for them to look at and decide whether to investigate. We have very strong links with police around the UK through which we can do that.
Holly Lynch
Q
Louise Edwards: The answer to your first question is quite simple: we are not looking at any instances of foreign interference at the moment.
The second question is a very good one. If I may be so bold, I do have an ask. One of the challenges when working with law enforcement is that we do not have effective information-sharing powers. One of the things that the Bill would achieve is to bring the police in particular further into the political finance enforcement regime by making the listed offences matters for them only, rather than for us at all. We need a more effective information-sharing power under which we can just hand evidence straight over to the police, unlike at the moment. Currently, it is like we have to say to the police, “Can you please ask us for the evidence information that we want to give you?” If we could cut through that with some decent information-sharing powers, it would make the process an awful lot more straightforward.
Scott Mann
Q
Professor Ciaran Martin: One sees only the tip of the iceberg when there are major breaches. I will use a well-known example from the United States—a close ally that is perhaps easier to talk about because it does not involve disclosing sensitive things about the UK.
The hybrid operation against the United States in 2015, which the US Government at the time acknowledged formally was undertaken by the People’s Republic of China, involved the extraction of more than 20 million security clearance records from the United States Office of Personnel Management—effectively the civil service department of the US Federal Government. It was the security clearance application forms of everyone who had applied for security clearance from the US Federal Government in the first 14 years of the century. As a dataset, it is incredibly rich. For example, if you are part of a commercial data breach, it is likely to be just your name and email address—possibly a password, although perhaps not even that, and possibly the last four digits of a credit card. If you go through a Government security clearance process, it is everything.
Think of the current politics of the US and China, and think about the established fact that the Chinese Government have this dataset of US Government personnel, with lots of information about them. You can see the strategic impact that that can have. To the best of my knowledge, based on public scholarship and disclosures relating to that incident, it was a largely remote operation, but it did include some activity on the ground. You can see how the sort of legislation we are talking about here might be useful in at least deterring or being able to deal with that.
Holly Lynch
Q
Professor Ciaran Martin: I would say this, wouldn’t I, but there has been a reasonably decent trajectory of controlling it.
There is a challenge for defenders. If you are attacking—if you are Russia and you have a programme of destabilisation of the UK through these sorts of means—it is all the same programme to you. But if you are defending against it, the defence of the networks of a privately owned critical infrastructure company, such as the energy grid, is one problem, and the protection of sensitive Government networks—diplomatic cables and intelligence services—requires you to do something slightly different.
Disinformation is a different problem again, because historically under our laws, quite rightly, it has not been an offence to make up a lie and put it on the internet. That is different from a cyber-attack. Putting it under a single organisation is really quite hard.
Things were starting to get better around the time of the end of my Government service in 2020, although there is probably some way to go, on the synthesis of operational cohesion—the sharing of information—across these different parts. It is better than it is in quite a lot of other countries—it is less siloed—but I am sure, Ms Lynch, that there is plenty more that could be done to improve it.
Holly Lynch
Q
Professor Ciaran Martin: A lot of countries have struggled with it, and it goes beyond just legislation, if I am honest. In terms of things like disinformation, quite interesting were some of the things that the French did in 2017, when there was the Russian attempt to do something and they deliberately sort of cast doubt on the integrity of it. They knew the information was being, in effect, data dumped, but they are believed to have done some alterations so as to cast doubt on the authenticity of the whole thing.
In terms of civic society and discourse, in advance of the 2020 election the Washington Post editorial board did something really interesting. Although it did not come to pass in the way that it did in 2016, they issued a proactive statement to say that if they received very sensitive political information but from a suspect source that was likely to be a foreign intelligence service, they would treat it differently from, say, a leak from within the United States—they might sort of print it differently. There is a discussion about how we handle the outcomes of disinformation, on the assumption that it might happen. That is one idea.
On the other hand, on the duties to protect within Government, for example, we are not always very good at gradations of harm. When I started in the civil service at the end of the last century there was still this approach that any leak of any data was potentially quite serious. These days, there is far too much information to take that approach—things are going to leak all the time. We need to focus on an understanding of harm caused and the duty to protect the most sensitive information.
Antony Higginbotham (Burnley) (Con)
Q
Professor Ciaran Martin: It is for your detailed scrutiny to work out whether you think that activity that is clearly on behalf of a hostile state is adequately deterrable and punishable by this Bill. It is quite clear, from both my previous job and discussions and concerns in academia, that it is a target sector—of course it is—for hostile foreign powers, particularly China.
I have to say that even before I went to work for a university I thought it was a very, very hard thing to leave to universities to police. I am not a legal expert, so I do not know how this is going to work on the ground, but the question is: does this Bill provide a sufficient legislative framework to deter some of the actions? There is plenty in the Bill that says that damaging foreign intelligence activity in this country is unlawful, and that would obviously include the academic sector. Whether that sufficiently captures activity is an interesting question.
I think it does help, but it is probably quite tricky to specify, if you like, academic institutions as distinct from general malevolent activity in whatever the sector may be. It is a question worth asking, though, because the sector that I work in now is clearly of significant interest to hostile intelligence services in all sorts of different ways, including in respect of people and individual areas of research. That is one of the key threats that legislation like this is designed to counter.
Scott Mann
Q
Professor Penney Lewis: I am afraid that I will be less happy about that question. The Law Commission was asked to look at the Official Secrets Act. The project’s terms of reference focused on official Government data, so we have not looked at those matters. There are a number of matters contained in the Bill that were well outside the scope of our project, and I am afraid that we just cannot comment on them.
Holly Lynch
Q
Dr Nicholas Hoggard: Yes, I think we are. One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.
There are some powers for the Secretary of State that exist under the 1911 Official Secrets Act, but they are quite restricted. What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where there is actually a real risk of harm arising from hostile state activity.
On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.
Holly Lynch
Q
Dr Nicholas Hoggard: I do not think so. We gave some consideration to the differences throughout the project in many different parts of legislation between, say, national security and safety, and interests of the state. There is a risk that one ends up swimming in a sea of semantic exercises and trying to work out what the differences and permutations might be. The requirement to consider what might be necessary to designate a prohibited place in the context of the safety or interests of the state is an important power. I do not think it affords unlimited sweeping power to designate anything.
I think safety or interests of the state still make up a relatively confined subset of consideration. It does not enable somebody to start thinking about, in very broad terms, what might be necessary. I suppose the concern, which was raised by Government at the time and some of the stakeholders, was that if you frame these considerations in the context of national security alone, that might unnecessarily narrow the inquiry. Our position is that safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act, it is consistent with the wording in some of the Bill and it avoids what might risk being an unduly narrow focus on national security.
Holly Lynch
Q
Professor Penney Lewis: The espionage offences here really do not fall into that category. The kinds of offences that you are talking about are the ones currently in the Official Secrets Act 1989 that are about unauthorised disclosure, where there is legitimate concern about information that is embarrassing. Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.
However, in relation to these offences, they have with them conditions that relate to the purpose of the person committing the offence that take them outside of someone who is leaking information, whether to embarrass the Government or not, and focus them squarely on someone who is acting to help a foreign power. I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.
Holly Lynch
Q
Professor Penney Lewis: Sadly, no. That was not within the scope of our project. It really exceeds the focus of our project on official Government data, so we did not make any recommendations in relation to those kinds of powers and we do not have a view.
Damian Hinds
Q
Rich Owen: We think the solicitors’ profession should be subjected to the scheme in just the same way as any other, although we would like an exception on grounds of legal professional privilege. This is an ancient common-law right going back 400 years or more. It is also regarded as a human right and as a corollary of everyone’s right to receive legal advice and assistance and we feel it plays a crucial role in the proper administration of justice.
To be clear on what we mean by legal professional privilege, it is communication between a client and lawyer whose dominant purpose is to seek legal advice, or a communication between a client and lawyer in anticipation of pending or actual litigation. We therefore think that if there is a foreign influence registration scheme without legal professional privilege, then solicitors acting for foreign states or foreign state-related actors, such as companies controlled by or influenced by foreign states, would have to disclose documents. We think that profoundly compromises the rule of law and the fairness of trials, and will affect the relationship between client and lawyer.
I think it is easy to forget that legal professional privilege is not a privilege for solicitors or lawyers; it is for the client. Of course, clients want to be open with their lawyers when they are seeking advice, and we think this scheme would inhibit that openness. Of course, very often, the reason why they want to be open with their lawyers is that they want to know how to comply with the law, rather than breach it. That is why an exemption is needed in any such scheme.
Holly Lynch
Q
Professor Penney Lewis: I am sorry but I am going to be very boring again. The offence in clause 3 is not the implementation of one of our recommendations. It is one of the offences that was outside the scope of our project. The main espionage offences that are in the existing Official Secrets Act, which implement our recommendations, are in clauses 1 and 4 of the Bill.
Dr Nicholas Hoggard: I will add to that without going outside our own remit, but thinking more broadly about the distinction between UK interests and Government interests. To re-emphasise a point that Penney made earlier, the essence of espionage offences lies in that purpose prejudicial. That is why we see in those offences that have the purpose prejudicial element—where your purpose is prejudicial to the safety or interests of the United Kingdom—that the sentence is so much greater.
The mens rea—the fault element—of those criminal offences lies in that purpose prejudicial. You need not only your purpose but to have known, or ought to have known, that your purpose was prejudicial to the safety or interests of the UK. Also, you must have known, or ought to have known, that you were acting to benefit a foreign power on behalf of a foreign power. Taken together, it is that essence that makes those offences substantively different from the sort of behaviours that might embarrass a Government—or a Government Minister. That sort of thing often falls for consideration within unauthorised disclosure offences, but it is not really the meat of an offence focused on the active interference with the proper safety or interests of a state.
Regularly throughout the project we met with a number of the UK intelligence community in Cobra with the Government security group. The evidence we heard of the nature of hostile state activity does not really have a bearing on the sort of material that sometimes gets disclosed that might embarrass Government Ministers. They are two quite different creatures.
Damian Hinds
Q
Professor Penney Lewis: Maybe I will start with the high level and then Nick can come in with a bit more detail. I should preface my answer with a slight caveat. This project started in 2015. Nick joined the Law Commission in February 2019 and I joined in January 2020, so while we were heavily involved in the final report, neither of us were involved in drafting the consultation paper or in the consultation period, which happened in 2017. None the less, we have read the consultation responses, and I can also talk slightly more generally about how we go about doing a consultation.
We were asked to take on this project. The way we work is that we undertake a pre-consultation investigative phase where we talk to stakeholders. That involved Government stakeholders, including Government security stakeholders. We talked to a lot of academics who work in this field. We talked to the media, because obviously they were particularly interested in the 1989 Act, and various organisations that are interested in freedom of expression and open government. We then drafted a consultation paper, which contained provisional proposals for reform. We put those out to public consultation. We had a three-month consultation period, and we had a number of consultation events during that. At the same time, we are continuing to talk to Government security colleagues, as Nick mentioned.
We eventually came to an agreement with Government security colleagues about how they would brief us about the details of the threat facing us without us then being in a position where we would have to say in our report, “Well, we have heard all this secret evidence. We can’t tell you what it is, but trust us that these are the recommendations we think will safeguard the security and interests of the UK”, and without also putting the security and interests of the UK at risk. We agreed a confidential briefing process that involved Nick and me. We then also agreed the disclosure by Government of hypothetical examples that they had drafted to represent the real threats that they told us about confidentially and securely.
Throughout the report, there are hypothetical vignettes that illustrate particular risks. Those are the Government and intelligence services’ creatures, but they were the way in which we were able to reflect the reality of the threat. We then considered the consultation responses and the information we had had from the Government security group. We actually changed a number of things we had said in our consultation paper, so in between the provisional proposals and the recommendations there are a number of significant differences, particularly in relation to the 1989 Act. We then published a report in 2020, which contained our final recommendations for reform.
Dr Nicholas Hoggard: I will go into some specifics of what we learned, which is generously open-ended. What Penney says is correct; there were a number of changes that followed the consultation paper, come the final report. One of the major reasons for that was our engagement more substantively with confidential material and representatives from the UK intelligence community—UKIC—and across a number of Departments. It became increasingly clear to us that the scale of the threat was of an order of magnitude that, even in relatively recent integrated reviews, had not really been reflected. That scale really comes from the cyber-threat. I do not want to repeat what far more sophisticated witnesses said earlier in respect of that, but it also became increasingly clear to us that the way in which very capable state actors were wielding that cyber-threat meant that certain of the original provisions we had made needed to be reconsidered.
One example of that would be the extraterritoriality provisions, both in relation to the espionage offences and the unauthorised disclosure offences. The nature of the way in which cyber-information is held—of course, cyber-information now basically means all information—has changed. The existing offences under the 1911 Act and its ancillary Acts are now almost quaint in the way that they perceive espionage as something that happens on our territory. Of course, that is simply not the case anymore. These extraterritoriality provisions, though relatively unusual for criminal offences, are none the less vital if we are to capture the sort of behaviour that we see now. I think the process we went through in engaging with UKIC was actually vital for the understanding of, and background to, some of the recommendations that we made.
Scott Mann
Q
Poppy Wood: Obviously, you have heard from much greater experts than me about hack-and-leak operations et cetera, and I refer you to their remarks about that. In terms of co-ordinated disinformation campaigns, as I said we have seen that in the US election, with really targeted approaches to particular groups that people wanted to divide. When I mentioned that the US Senate said that African-American electors were being targeted, it was clear that the Russians wanted to stir up tensions within that group and between that group and white police. They would really push Ku Klux Klan narratives, false images and all sorts to make sure that those groups were infighting. I would absolutely expect to see that here as well.
Political ads are also a really big issue. I cannot work out whether they are dealt with in the Bill, but they are certainly not dealt with in the Online Safety Bill. The Cabinet Office seems to own the political ads regime, but we are seeing shell companies buying these ads purely to stoke division and tension, and we would expect to see that again. One of the problems with not having a grip of the issue, particularly as we could go into an election period in the UK at any point, is that we need someone to comprehensively pull this all together.
The Russians and the Iranians often leave quite a lot of fingerprints on their work, sometimes intentionally. I know that Ken McCallum, who is director general of MI5, and the FBI discussed the threat from China yesterday. They did not mention disinformation, which I thought was interesting, but the Chinese have historically been much better at not leaving their fingerprints on things, so I cannot really speak to some of their activity. However, we have seen it time and time again.
It is probably best not to talk about the Brexit referendum, but we all know what happened there with the engagement from foreign actors. We should not be surprised to see disinformation. We are vulnerable in the UK because of our role in supporting Ukraine, and we have to pull it all together. If the Online Safety Bill, combined with the National Security Bill, does not do so, I do not know what will.
Holly Lynch
Q
Poppy Wood: We have to be careful not to try to define disinformation. There is some language in the Bill about misrepresentation, and the idea of intentionally misrepresenting is important. We will never get a grip on exactly what disinformation is, because it is a shapeshifter.
On the first part of your question, it is about the system of amplifying and the ease with which people with malicious intent can manipulate systems by creating fake accounts, not verifying IDs and exploiting the recommender algorithms so that they hook you with one piece of content. We see this time and time again. One piece of bad content is not the problem, but they hook you on it, which then leads you down a rabbit hole to something much darker and more radical. It does not even have to be radical; it can be the sort of stuff that we were talking about with the Scotland referendum. It can be innocuous, such as stories about what the royal family are doing. It is about sowing seeds and exploiting cognitive dissonance, which bad actors are very good at and which social media is absolutely weaponised to make the most of, because of the pace and amplification of the content.
The Online Safety Bill goes part of the way there; it is imperfect, partly because it is so hard to define disinformation. There is very little in the Online Safety Bill on disinformation. There is an advisory committee that is years down the road. It is ironic that the National Security Bill is about trying to rein in certain types of transparency. Transparency is a really big part of all this, so it is about trying to find out who is behind things and what the data patterns really look like, and building in researchers. I think that was something Ken McCallum said last year. A holistic approach is a cross-Government approach, but it also involves industry, civil society, journalists and researchers. Everyone has to focus on this. Both Bills could go further on systems and, as I say, the co-ordinated inauthentic behaviour language just is not there either.
Holly Lynch
Q
Poppy Wood: That is a brilliant idea. It goes back to the point about grip. We are seeing really good work being done by the Home Department and the Department for Digital, Culture, Media and Sport. I think the DCMS counter-disinformation unit is an important tool, but it is very small, as is DCMS, and it is lacking the transparency that such interventions require. It should probably be a body like the Intelligence and Security Committee—some kind of cross-party body, quasi-independent of Government, thinking about the issues, with input from expertise in the relevant services and relevant Departments. I know that the Home Department and DCMS work together closely on this, and I think the Cabinet Office also has a role to play. Instinctively, I feel that something like the ISC would be the best place for it, but I am sure that is to be worked out.
One of the issues with a lot of this stuff is the role of the Executive, and making sure that the body is that far removed from political interference.
Damian Hinds
Q
Poppy Wood: Absolutely. If you are suggesting that they respond to PR crises, I would agree with you on that one. Of course, this about brands. We have seen with revelations from Frances Haugen that Facebook is not understaffed but just not focusing them in the right direction on this stuff. There are only handfuls of people focusing on co-ordinated disinformation for the whole world within these big technology companies. It should be dozens, especially if they are hiring 10,000 engineers for the metaverse in Europe. They can put some of them on elections and tracking. They say that they go far, but they could go much further. When there is pressure on them, they respond, and so far that pressure has been PR because there has not been regulation.
The Chair
Last but not least, we will now hear from Dr Nicholas Hoggard, lead lawyer for—I am so sorry; it is that time of day and the lack of coffee. [Laughter.] I should have confiscated my colleague’s coffee and had it for myself! Apologies; we are going to hear from Dan Dolan, the director of policy and advocacy at Reprieve. We have until 4.40 pm for the session. Could you introduce yourself for the record, Mr Dolan?
Dan Dolan: Thank you very much. My name is Dan Dolan, and I am the director of policy and advocacy at Reprieve, a legal action charity that seeks to uphold the rule of law and human rights around the word. Over the past 20 years, Reprieve has provided legal and investigative support to hundreds of prisoners on death row, the families of innocents killed in drone strikes, victims of torture and extraordinary rendition, and scores of prisoners in Guantanamo Bay. Thank you for the opportunity to give evidence.
Holly Lynch
Q
Dan Dolan: Absolutely. I should start by saying that we absolutely recognise that the country’s intelligence agencies do a difficult and often dangerous job to keep us safe, and we give our evidence in recognition of that. We think clause 23 is much more likely to protect Ministers and senior officials from criminal liability than anyone in the midst of an operation overseas.
The reason why we say that is because there is already a regime, under the Intelligence Services Act 1994, under which acts that could constitute a criminal offence overseas would be authorised by a Minister if they are in the furtherance of the agencies’ duties. That is well recognised. The Minister who took that Act through described offences such as bugging, bribery and burglary, which you can imagine an officer of the intelligence agencies may need to do overseas to keep the UK safe. That regime already exists in law, and it allows for authorisation of potentially criminal acts overseas.
Clause 23 disapplies provisions of the separate Serious Crime Act 2007 relating to encouraging or assisting the commission of a crime—specifically, schedule 4, which relates to extra-territoriality, meaning crimes that would be encouraged in the UK but committed overseas. There is already a regime that protects officers of the UK who are involved in operations overseas and do things that may be criminal by giving them insulation from criminal liability.
Clause 23 insulates people from criminal liability for acts undertaken in the UK to encourage or assist offences overseas. Realistically, we are talking about conduct that might take place, for example, behind a desk in Whitehall, but would ultimately result in what would be a criminal offence overseas. There is an existing legal regime to cover offences of those who undertake them outside the country; this is about actions taken within the country, if that makes sense.
Holly Lynch
Q
Dan Dolan: Yes, it would be. Effectively, clause 23 looks a lot like an effort to protect Ministers from criminal liability for actions that they encourage or assist in the UK that could constitute a crime overseas. This is not a hypothetical idea. There have been instances that were extensively documented in the Intelligence and Security Committee’s detainee report, where UK Ministers and officials authorised intelligence sharing that led to appalling torture and mistreatment of people overseas. The ISC has documented that extensively.
A good example is the case of Abdul Hakim Belhaj and his wife Fatima Boudchar, who in 2004 were rendered to Libya where they faced appalling mistreatment, both in Libya and in the course of their rendition by the US CIA. Subsequently, it emerged that the UK Government had provided the tip-off to enable that extraordinary rendition. The couple ultimately received an apology from Theresa May’s Government, recognising that the UK had shared intelligence that had contributed to the couple’s absolutely appalling mistreatment.
That is not an isolated case. During the war on terror era, there were many instances where the UK shared intelligence that contributed to torture. That has been recognised. The then Prime Minister recognised that in her response to the ISC’s report, and pledged never to do that again. What this clause would do is effectively to insulate Ministers from criminal responsibility for those kinds of offences.
Holly Lynch
Q
Dan Dolan: That touches, importantly, on the point about whether clause 23 would protect officers acting overseas in the UK’s national interest, or whether it would protect politicians and officials taking actions in Whitehall, like sharing intelligence. In response to your question, I want to read a quote given by MI6 to the ISC’s detainee inquiry—quoted in the report—with respect to section 7 authorisations under the 1994 Act. The Secret Intelligence Service said that, in the cases they were talking about,
“we are … always going to go for a section 7 authorisation. Because, you know, why should my officers carry the risks on behalf of the Government personally? Why should they? So, you know, as we have already discussed, serious risk is…a subjective judgement. So we will go for belt and braces on this.”
I think that “belt and braces” is the important phrase to think about, because that is MI6 describing the separate 1994 section 7 authorisations as a belt-and-braces approach to protecting officers from criminal liability. That regime exists already, under the Intelligence Services Act 1994, so why do we need clause 23? It relates to actions taking place here in the UK—not people operating abroad on operations, but people acting in the UK—so what kind of actions are we talking about? The area that is not covered under existing legislation is the authorisation of acts or the sharing of intelligence that happens here in England or Wales.
We are therefore not of the opinion that the clause would offer additional protection over and above the 1994 Act. The clause covers a different category of offence, and that would be the encouragement or assistance of a crime from within the United Kingdom. We are talking about Ministers and officials approving things here, not people on operations overseas.
My final point—I know this was made on Second Reading—is that the Serious Crime Act 2015, sections of which would be disapplied by clause 23, already includes, in section 50, a reasonableness defence. Even if you imagine a case in which the Government argue that a Minister needs to order something that might be a crime overseas in the national interest—they would have to make a strong case for that—they would have a legal defence under reasonableness to say that their action was reasonable under section 50 of the Serious Crime Act. What we are talking about here is clause 23 disapplying legislation that would hold Ministers to account were they to encourage or assist a crime overseas.
Jess Phillips
Q
Dan Dolan: I am sorry to be unhelpful, but Reprieve’s evidence largely covers the provisions under clauses 23 and 57 to 61. I can pass it on to somebody.
National Security Bill (First sitting)
Holly Lynch ExcerptsThursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
Scott Mann
Q
Jonathan Hall: First, it is being able to go to the room where it happens—the meetings where these decisions are taken. When I review TPIMs, I have a completely free hand. I am able to interrogate officials and able to see whatever I want. That is really important. I am not just looking at judgments in courts, or just reading documents; I am actually there able to interrogate, test and challenge. That is what I do. Also, I think it is important that Parliament and the public have a sense of what is going on. Regrettably, because legal aid has not been made available in all cases for TPIMs, there are now fewer court cases, so general information about how this important but serious power is being exercised is relatively cut off. The independent reviewer can provide a lot of transparency about how it is operating.
Holly Lynch (Halifax) (Lab)
Q
Jonathan Hall: It has been tentatively mentioned. Obviously, because the legislation has not been passed, I have not been formally asked whether I would do it, but it has been tentatively asked. My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation. The reason is that this new legislation is really modelled on terrorism legislation. In crude terms, the concept of the foreign power condition sits in place of the purposes or acts of terrorism, and then there is the same framework in terms of very strong arrest power, detention up to 14 days, strong powers of cordons and search and investigations, and, of course, the PIMs. There are so many learning points between the two regimes that it does make sense.
Holly Lynch
Q
Jonathan Hall: Having thought about this, I do. I do not think that decisions on prosecution are going to be made other than in really strong and good cases. Where I think one needs particular care is with all the strong powers that come before prosecution, for example with arrest and detention, as well as the PIMs, which are based not on beyond reasonable doubt but on the balance of probabilities.
We have to acknowledge that we live in quite a polarised world at the moment and that citizens of individual countries, such as Russia and China, and those who associate with them, are bound to fall under suspicion. There is a parallel here, in the sense that people used to argue—I think wrongly, but they did argue —that counter-terrorism laws in England and Wales were anti-Muslim, and I think having a reviewer is one way of offering reassurance that that is not the case.
Holly Lynch
Q
Jonathan Hall: I expect that they will be effective because the agencies and the Home Secretary will only think about imposing one when they think it is going to work. There are many more subjects of interest who have terrorist intents than are currently on TPIMs, and I expect that the same will be true in relation to people who are foreign threats. There will be many more people who are identified as foreign threats who will actually go under PIMs. At the moment I think only two people are under TPIMs, so it is very few. I would have thought that the agencies and the Home Secretary will think very carefully before imposing them.
Holly Lynch
Q
Jonathan Hall: What I have been told is that polygraphs have not been used for TPIMs, as far as I am aware, but they have been used for released terrorist offenders and some disclosures have been made. Everyone always thought that the real utility of polygraphs and the clear reason for their use is the disclosures that people make when undergoing the process. I gather that some admissions have been made that have been valuable and have led to a recall. I do not have a huge amount of data, but they seem to have had some success in the context of terrorism offences.
Damian Hinds (East Hampshire) (Con)
Q
Jonathan Hall: I cannot remember the total number of TPIMs. I think it is around 30, but I may be misremembering and that may also include—
Stewart Hosie
Q
Jonathan Hall: My view is that it is the same thing.
Holly Lynch
Q
Jonathan Hall: I am slightly uncertain and concerned about the scope of clause 3(2), the foreign intelligence services offence. On the face of it, an offence could be committed inadvertently, and it does appear to cover quite a lot of lawful conduct. The example that I have been debating with officials is the example of someone who sells miniature cameras, which is undoubtedly conduct of a kind that could assist a foreign intelligence service. My concern with clause 3(2) is that it does not seem to have a sufficient mental element, either that the individual who commits the offence is deliberately acting prejudicially to the UK interest, or knows or ought to suspect that there is some foreign intelligence service involvement, so I have a concern about that particular clause.
Sally-Ann Hart (Hastings and Rye) (Con)
Q
Jonathan Hall: Not all terrorists are cold, calculating, ruthless killers who will go and commit terrorist acts whatever their circumstances. They may exist, but there are also quite chaotic terrorist-risk offenders. I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.
My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made and a sense of injustice or grievance on behalf of the terrorist offender, who will perhaps say to themselves, “Why can’t I get legal aid when everyone else in my situation can?” My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.
Scott Mann
Q
Sir Alex Younger: Yes.
Holly Lynch
Q
Sir Alex Younger: First of all, I think it is a good idea, fundamentally, to require people to say if they are acting on behalf of a foreign power. I am supportive of that because I know how difficult it makes it for people intent on conducting operations against us to operate, and makes it much easier to prove. I am therefore instinctively supportive of that, and of a register, and I think that we should get on with that. I have talked to the Government about that; they are understandably cautious, given all the unintended consequences attached to it, and the fact that our adversaries use those techniques in a way that lacks good faith and is malicious. However, fundamentally, I am supportive of it.
I have to be honest; I am more ambivalent about the idea of distinguishing between nations. My view of legislation generally, but particularly when it comes to technology, is that it is a mistake to write things to the current circumstances. It is much better to write things to the principles that you are seeking to employ. I am not a lawyer or a member of the Government, but my recommendation would be that we go for a principles-based approach in so far as we can.
Holly Lynch
Q
Sir Alex Younger: You are referring to the amendment to the Serious Crime Act?
Holly Lynch
That is right, yes.
Sir Alex Younger: I strongly believe that that is necessary. I am conscious of the concerns that you will have, and even the contentious nature of the assertion, so if you will forgive me, I briefly have to tell you why.
First, alongside our ability to uphold our values and not be terrorists, the other reason why we have been successful in stopping bombs going off has been international partnership. That is because no one state or intelligence service really ever has the full facts. They have to work together and combine their information to get the intelligence that is required, proactively, to disrupt terrorist events. That was true in the analogue world; it is really true in the digital world. It is the thing that works and keeps us safe.
That involves an unavoidable risk. That risk, through all the safeguards that you will be familiar with—but which I am happy to talk about—is managed down to the very lowest level possible. However, ultimately, we are dealing with sovereign actors—other states who we do not control—and ultimately, when we are exchanging large bulk datasets, notwithstanding all the scrutiny and risk management, there is a possibility that there will be data in that dataset whose significance we do not understand until it is compared with another dataset that we do not have. That is an unavoidable risk.
An issue that I think you have to consider is, who should be carrying that risk? My view is that there must be accountability, but where an SIS officer or any other UK intelligence community officer is acting in good faith, within their instructions, as authorised by Ministers, on behalf of you and the public, it should not be them carrying the risk. It is more appropriately carried by the Government more broadly. I feel that, as you can tell from my body language, very strongly, as a leader.
It was unavoidable that we sent our young men and women into harm’s way when it came to physical risk. For instance, I served in Afghanistan. Our people were asked to go out on to the streets day in, day out. It involved physical risk that we mitigated down to the lowest level we could possibly manage, but it was part of the deal.
These risks are avoidable. Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.
Professor Sir David Omand: I very strongly agree with what Alex Younger has just said. I know from my own experience of GCHQ that information-sharing with our close allies and indeed more broadly is essential, and I think it is morally wrong to place that burden on the individual member of staff, who may be quite junior, who is simply following the policies and the instructions that they have had. In the end, the Government Ministers must account if something unexpectedly does go awry.
Holly Lynch
Q
Professor Sir David Omand: My counter-argument would be that this is actually a question of principle—how Government works, particularly in relation to people whom we as a nation are asking to take some significant risks on our behalf. This is an additional risk. You may say that it is theoretical; they may not feel it that way, and I think that we owe it to them to protect them.
Sir Alex Younger: It does not feel theoretical. You know, you have to examine the motives of the staff of the UK IC, who are ordinary members of the public, just like you and me. They are not doing this for personal gain.
There is a very practical point that I think the Committee must consider, which is the incentive. Over time, what is going to motivate admittedly a very mission-orientated community if they see personal legal jeopardy in an area where there is an unavoidable level of ambiguity? I think that will inhibit people from the exercise of sharing. I hope I have been really clear that it is the exercise of sharing that allows us, as a team, to deal with the threats that we face. The risk may be theoretical, but it does not feel like that when you are stood in front of the person or the computer.
Ben Everitt
I think everybody here would agree that a team has to play by the same rules.
Holly Lynch
Q
Professor Sir David Omand: I was pleased to see the power in the Bill because, particularly in the digital age, you can take the offensive and you can prepare, but you may not have got to the stage of actually pressing the button. If you can demonstrate that a foreign state was engaged with help from inside the country in some serious espionage or sabotage activity, it seems to me that the very preparation is something that the prosecutors ought to be able to bring forward. In the terrorism example, the cases would be slightly different, but the offence of acts preparatory to terrorism has been extremely helpful to the prosecution authorities for good reason.
Sir Alex Younger: The bottom line is that we have to get in front of this stuff. Just speaking as a counter-terrorist practitioner, that is the additional discipline. It is not like solving the crime. We need to solve it before it has happened, and that raises a set of ethical and legal dilemmas where it is important to be striking the right balance, so I really welcome the proper treatment that we see of that in the Bill.
Holly Lynch
Q
Professor Sir David Omand: Probably not, but on the other hand you have to balance that against the risk that legislation would inadvertently catch, for example, academic activity in think-tanks. Alex Younger has referred to transparency and covertness. Where a foreign power is taking covert acts and dirty tricks in order to access our institutions, think-tanks and universities, that would be criminalised by the Bill.
Where a member of the embassy of any foreign state represented here attends, quite openly, think-tank meetings and so on—everybody knows who they are and they know they are on the guest list—that does not pose a direct harm. It would be a mistake to start to try to confuse those categories too much. However, what it comes down to is that this is a probabilistic business; this is doing things that increase the chances that we all protect the citizens and the interests of the state. This Bill alone is not going to prevent states from attempting harm against us, and it probably will not catch all those harms either, but it is a good start.
Scott Mann
Q
Professor Sir David Omand: Well, there is a lot in the Bill. The move away from having to identify states as enemies, for example. States have interests of their own and they will promote those interests. If they are doing so openly through diplomatic and academic means, that is one thing, but if they are doing it, as some are, covertly, then although you might not categorise them as enemies, they are none the less conducting themselves in a way that causes harm. That is one of the examples where I think the Bill takes a more up-to-date view. It is not just nations with which we are at war or potentially could be at war.
Holly Lynch
Q
Professor Sir David Omand: My reading of the Bill is that trade secrets and theft of intellectual property are well covered. You probably also have to have in mind the Online Safety Bill, which has a whole different set of considerations but which is, again, intended to reduce the amount of harmful content that citizens are exposed to. It is quite easy to envisage cases where a foreign state is putting material online covertly and pretending to be someone else.
In the 2016 US presidential election, there were a number of egregious examples of that—for example, in order to stir up conflict within society by exaggerating an existing split in society, be it over race, inequality or any other issue. That is the nature of the threat that we currently face in all democracies. You cannot solve it all by creating criminal offences where a link cannot be established back to the foreign powers condition, but you may be able—by working with the companies, which will exercise their own terms and conditions—to get more of this stuff removed. You need that as well as the powers in the Bill.
Holly Lynch
Q
Professor Sir David Omand: Yes, and another important consideration is public education. I have argued before that we should start teaching critical thinking in schools and teaching kids how to be safe online when they come across deliberate and malicious misrepresentation.
Holly Lynch
Q
Paddy McGuinness: It was quite extraordinary that we had a range of different possible offences that relate to the kinds of things that a hostile state would commit in order to sabotage, for instance, critical national infrastructure—a target entity in the UK—and that it was not coherent. What I would put in front of the Committee when you are thinking about this is: the most common thing that I find now in corporate life, but also in Government or in policy space—and in Parliament where I do a bit of advisory work—is stovepiping.
You say “cyber” or “cyber-security” and people immediately think of cyber-security issues, or you say “insider issues” and they say they will deal with that, or they think of physical attacks or physical disruption and they deal with that. They do not understand that this is a playbook, which, if you are a Russian commander, you put together, and you have a choice of what you do.
So you go in an escalation route from, “Can we access this remotely through the internet? Is there another way of accessing it electronically? Do we have a spy within it? Can I send someone from the embassy to go and get close to it and do something to it? Shall I send in Spetsnaz covertly—you know, go to Salisbury and poison some people? Or shall I go to war?” You have that whole range of things and they all relate to each other. And all of them relate to sabotage. We need to approach this by understanding what the adversary is doing and not having little bits of powers in some criminal damage legislation, or in the Computer Misuse Act. That will not do because that is not the purpose of the opponent.
I have described it for disruption and destruction in a sense of warfare, and I have used a kind of Gerasimov Russian example. It is very interesting when one looks at the way in which intellectual property has been stolen. There are a few cases where we see the end-to-end Chinese state effort, where you begin with remote cyber-attacks in close proximity—the case I am thinking of was in the United States—and an inability to get in by those means. Eventually, the subversion and recruitment of a member of staff operating in Switzerland provided them with the intellectual property, which they were not able to access using the cyber techniques. All the way through they were intervening in the networks and activities of that company.
One final thought on this: one of the difficulties with this grey space activity, as Sir Alex described it, is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.
Holly Lynch
Q
Paddy McGuinness: The Clerks may have told you, or it may be in my bio, I do not know, but after I left Government I was asked by the Oxford Internet Institute to join them in a thing called the Oxford Technology and Elections Committee, prior to the 2019 elections—with an urgency because of what had happened in the United States in 2016—to come up with some practical suggestions for what we might do to protect our elections. I refer you to it: it is a great bit of work, and the Oxford Internet Institute has gone on doing that work. I am no longer as involved, but there is good work there.
The way I would frame it is this: it is a bit like what I said about the powers that we have. Because we do not occupy the space, others step into it, so because there are not strong controls and real clarity about what is happening around our electoral processes, people mess about in that space. It is really important—this rather echoes something Sir Alex said—that we do not take messing about in the electoral space as being the same thing as delegitimising an election. We have a strong tradition in the United Kingdom of being able to make judgments about whether the way in which candidates have behaved or the way in which money has been spent in a given constituency makes an election void, and you possibly have to run it again. We are used to making that judgment.
One of the risks that I note in this space—again, this is a point Sir Alex made very nicely about Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and—as Sir Alex said—that there is bright transparency so we know who is doing what.
Rights of Children (Police Custody)
Holly Lynch Excerpts(2 years, 5 months ago)
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Holly Lynch (Halifax) (Lab)
It is a pleasure to serve with you in the Chair, Mr Hollobone. I pay tribute, as others have done, to my hon. Friend the Member for Lewisham East (Janet Daby), who shared individual cases and statistics revealing that children and young people spend lengthy periods in custody. I thank her for securing the debate, for being a true champion and campaigner on this issue, and for the all the different ways she has used the parliamentary tools at her disposal to keep the spotlight on securing best practice.
Children and young people are a protected group with specific age-related vulnerabilities. Their treatment in detention is governed not only by domestic law, but by the UN convention on the rights of the child, which the UK has signed and ratified. Legislative requirements and best practice are outlined in various documents, including, most significantly, the Police and Criminal Evidence Act 1984—commonly referred to as PACE—and its codes of practice, guidance from the College of Policing, and the Home Office’s concordat on children in custody.
It is absolutely right that officers must take into account the age of a child or young person when deciding whether statutory grounds for arrest apply. Police should pay particular regard to the timing of any necessary arrests of children and young people, ensure that they are not detained any longer than necessary, and avoid holding them overnight in police cells unless it is absolutely necessary.
The College of Policing is right to stress in its guidance that
“Everyone who works with children has a responsibility for keeping them safe.”
That means that they have a role to play in identifying concerns about a child’s safety and wellbeing, sharing information and taking prompt action when it is needed to protect a child. A child who has been detained and is in police custody presents an opportunity to understand why, to disrupt their behaviour if it is criminal, and to safeguard them and the public from further harms.
West Yorkshire police’s violence reduction unit has undertaken several pieces of significant research to better understand the relationship between young people and violent crime. Nationally and in West Yorkshire, the number of proven offences committed by 10 to 17-year-olds has fallen dramatically, particularly over the past five years. The number of young first-time entrants into the criminal justice system has also plummeted. However, worryingly, in 2019-20, more than half of the offences committed by 10-17 year olds were violence against the person, compared with 39.7% in 2013-14.
We know that children and young people are capable of committing serious crimes and we cannot shy away from that, given the impact on victims, who are often children themselves. One comprehensive piece of research undertaken by Crest with the West Yorkshire and Harrogate Health and Care Partnership and the violence reduction unit found five key health inequalities that are influential in the lives of young people in West Yorkshire and their journey either towards or away from violence and exploitation: deprivation and socioeconomic disadvantage, trauma and unmet mental health need, education engagement, poor quality or lacking service provision and delivery, and contextual harm. More than 61,000 of 11 to 25-year-olds in West Yorkshire—13% of the population—were at risk of serious violence as a result of income deprivation and high levels of neighbourhood crime. One reality drawn out of the research that I find particularly depressing is how young people are being drawn into gangs and criminality by family members who are already involved. The report found that young people are often recruited by their own family. The reasons young people get involved in crime and find themselves in police custody serve as a reminder that some children’s lives could not be more different from our own and that harm and risk is all around them.
How can we ensure that encounters with the police and any time spent in custody have a positive impact on these children’s trajectory and do not compound the negative experiences surrounding them? The West Yorkshire violence reduction unit research recommended the development of trauma-informed practice across partnerships such as the complex childhood trauma steering group, which should be used to evaluate and standardise the trauma-informed offering across the region, and more and better mental health support for young people, all of which could and should be a feature of a child’s limited time in custody. The aspiration has to be that the more we understand the risks and recognise the value of targeted intervention upstream, the more time in custody can be avoided entirely for children and young people.
One of the key features of the opening speech from my hon. Friend the Member for Lewisham East was about the provision of appropriate adults. Research conducted by Dr Miranda Bevan of Goldsmiths, University of London, and Dr Vicky Kemp from the University of Nottingham, and shared by my hon. Friend found that it is not unusual for appropriate adults to not arrive until six or more hours have passed. Having got a better understanding of some of the reasons for that from my local police just today, I am sympathetic that trying to make contact initially with parents, who may or may not be available and who, sadly, are sometimes not willing to attend, then approaching the emergency duty team within child social care, and then, if they can still not get someone to attend, approaching the National Appropriate Adult Network, starts to show where the practical barriers to making swift progress are—and that is when attempts are made straightaway, which, as we have already heard, is not always the case.
From speaking to colleagues in West Yorkshire’s liaison and diversion team earlier today, I know that problems are often exacerbated when looked-after children are in custody. Lines of parental responsibility prove harder to establish at a time when some of the most marginalised children are required to make serious decisions, without support, in conditions that are designed to be uncomfortable. Indeed, the hon. Member for Strangford (Jim Shannon), who it is always a pleasure to see in Westminster Hall, made the right and powerful point, which has been supported by almost all the speakers made here today, about asking these children to decide for themselves if they want or require legal representation, when it should be the default.
In its research, the National Appropriate Adult Network points out that children in custody are disadvantaged by more than just cognitive development. They are much more likely than other children to have poor mental health, to have a learning disability, at up to 22% for that cohort compared with 4% in the wider population, to have a communication disorder, at up to 90% versus 7%, to be autistic, at 15% compared with 1%, and to have suffered a head injury with loss of consciousness for more than 20 minutes, at 18% versus 5%. If we are looking for confirmation of why appropriate adults are essential for children in those circumstances, the statistics could not make the case any clearer.
We know that there are routine delays in getting someone to attend on behalf of a child. Are we not able to establish a model of best practice that works for both the police and the child, and moves things forward by having someone skilled on hand to provide that service? I hope the Minister will share her thinking on that when she responds, and address the pilot scheme that my hon. Friend the Member for Lewisham East outlined, which appears to be delivering significant results. Once we have that in place, it opens up conversations about how swiftly we can move a child through police custody, and we can look again at 24 hours.
I am very much taking into account your comments, Mr Hollobone, but the Minister will be aware that alarm has been raised about strip searches in recent weeks. In response to a written question tabled by my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), the Minister for Crime and Policing confirmed that the Ministry of Justice is supporting a project with the National Police Chiefs’ Council with the aim of addressing the difference in experience of ethnic minority children and adults in police custody. My hon. Friend the Member for Battersea (Marsha De Cordova) shared some particularly powerful experiences of her constituents.
The Minister for Crime and Policing said that a wide range of agencies and independent advisers have contributed to that work, which engages a number of police forces across the country and builds on existing initiatives in the workplace, including a dedicated independent strip search scrutiny panel in Norfolk and Suffolk police. He said:
“From December 2022 we will be including more detailed custody data in the annual Police Powers and Procedures statistical bulletin which will include data on whether an appropriate adult was called out for a detained child and the number of strip searches & Intimate searches carried out, broken down by age, gender, ethnicity, and offence type.”
My hon. Friend the Member for Battersea also spoke about the importance of data. That piece of work is welcome, so will the Minister confirm when it will be concluded and published? It struck me that the response to that written question said that the research will determine if an appropriate adult was called. I very much expect to see that that requirement was upheld entirely.
I have spent a great deal of time trying to improve the modern slavery provisions in the Nationality and Borders Act 2022, and looking at when children come into custody. If there are concerns that they are victims of child criminal exploitation, county lines gangs or trafficking, the push to keep children out of custody for all the right reasons cannot mean that we cut corners and miss opportunities in our safeguarding obligations. Where the police arrest children and seize drugs or cash due to unlawful possession, they and other statutory agencies should fully understand the potential dangers for those children of being releasing without them, potentially back into the grasp of those who have been criminally exploiting them. We must work through that by involving all the relevant safeguarding agencies to truly disrupt the criminal activity that has a grip of the young person, and deliver that wraparound support as urgently as possible.
I thank my hon. Friend the Member for Lewisham East once again for securing this debate, and I look forward to hearing the Minister’s response to her powerful calls for best practice, scrutiny and oversight, and for making sure that children in custody are recognised and treated as children.
Draft Police, Crime, Sentencing and Courts Act 2022 (Consequential Provision) Regulations 2022
Holly Lynch Excerpts(2 years, 5 months ago)
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Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under your chairmanship this afternoon, Mr Sharma. I thank the Minister for his opening remarks. I hope that he will be relieved to hear that we recognise and agree with much of what he said.
As the Minister has already outlined, the proposed changes follow recommendations by the independent reviewer of terrorism legislation, Jonathan Hall QC, as part of his review of the multi-agency public protection arrangements. The independent reviewer’s work will always carry a great deal of weight with the Opposition, and we treat his recommendations with the utmost seriousness. The proposed changes also follow a recommendation from the inquest into the horrendous Fishmongers’ Hall attack in November 2019. As always with such attacks, it is important that we make a detailed review of our processes and legislation in order to plug any gaps that could be exploited by those wishing to do us harm. On that basis, we are keen to see the draft regulations enacted.
Of course, with any such extension of powers there can be unintended consequences or missed opportunities, so I look forward to Jonathan Hall considering the effect of these powers once they come into effect. We will continue to consider their effectiveness to ensure that the right balance has been found. We also look forward to seeing the revised code of practice in the coming days.
Overall, the Opposition are satisfied that the changes are proportionate to the security challenges we face and necessary if we are to reduce the risk of future attacks. I will not delay proceedings further as we support the proposals in the national interest.
Oral Answers to Questions
Holly Lynch Excerpts(2 years, 6 months ago)
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Holly Lynch (Halifax) (Lab)
Canada, one of our Five Eyes partners, recently announced sanctions against Alexander Lebedev as one of 14 people who
“have directly enabled Vladimir Putin’s senseless war in Ukraine and bear responsibility for the pain and suffering of the people of Ukraine.”
I have asked this question of the Government six times now, but I have not had anything resembling an answer: did the Prime Minister meet Alexander Lebedev without officials and without close protection during the Salisbury poisonings in April 2018—yes or no?
Damian Hinds
I do not know the detailed contents of either individual’s diary. What I can tell the hon. Lady and the House is that this Government have acted on sanctions against Putin-linked elites—the people who have propped up and supported that regime—without fear or favour. That extends to more than 1,000 individuals, entities and subsidiaries, and we will do more as required.
HM Passport Office Backlog
Holly Lynch Excerpts(2 years, 6 months ago)
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Holly Lynch (Halifax) (Lab)
Like every other MP who has spoken in the debate and, I suspect, every other MP across the Benches, I have an inbox and postbag full of Passport Office delays. We opened 30 cases last month, as the target for passport processing has slid to 10 weeks.
To share some further examples from my Halifax constituency, we have been working with a family who made an application on 17 March for the renewal of a child’s passport for a holiday on 30 May. We chased multiple times and escalated the case as the holiday got closer. The passport was finally processed and arrived the day before their holiday. However, the Passport Office made a spelling mistake in the child’s name, despite its having been spelled correctly by his parents on all the forms. It took that family more than 10 weeks to get the passport, and when it arrived it was wrong. They had no choice but to cancel their family holiday.
Another family applied for the passports of both their son and daughter to be renewed at the same time, with exactly the same information provided for both, other than their names, dates of birth and genders. Remarkably, the son’s application was processed immediately and arrived two weeks later. The daughter’s, however, is still ongoing, with the Passport Office continuing to raise new issues with it. First it queried the mother’s parental responsibility; then it said the referee who had countersigned the passport was not eligible to do so. Those may well be legitimate queries, but the information being questioned was exactly the same information provided for her brother’s passport, which was processed in two weeks. We are in a position where the process cannot be right, which prompts the question: why the inconsistency? Where is the oversight?
A third family applied for their daughter’s passport six weeks before she turned 16. They sought advice, given that if someone is within three weeks of turning 16 they are advised to apply for an adult passport. However, the Passport Office advised them to still apply for a child’s passport. Unsurprisingly, they have now been told she needs to apply for an adult passport and the family need to start the application process again, with their family holiday now imminent and hanging in the balance.
We have heard too many such cases in the Chamber today. My hon. Friend the Member for City of Durham (Mary Kelly Foy) spoke of exhausted staff of Her Majesty’s Passport Office having to witness threats of self-harm from a member of the public who was desperate for a passport. I thank her for her dedication and for being such a powerful advocate for those staff today.
My hon. Friend the Member for Blaenau Gwent (Nick Smith) told heartbreaking stories of lost holidays that his constituents had shared with him. My hon. Friend the Member for Vauxhall (Florence Eshalomi) told the story of her constituent Tom, who has endured various problems, setbacks and issues in applying for a passport for his six-year-old son. My hon. Friend the Member for Weaver Vale (Mike Amesbury) highlighted the challenges in just getting access to the data that we would all so like to see, including the answer to the big question—the size of the backlog.
My hon. Friend the Member for Newport East (Jessica Morden), who is a brilliant champion of her constituents, spoke of the local campaign she was involved with to retain her local passport office, working alongside the PCS union. She also spoke powerfully, as others have done, of the impact on children in particular of not knowing whether their family holidays will go ahead as planned, or will ultimately have to be cancelled at very short notice.
I pay tribute to my hon. Friend and neighbour the Member for Bradford East (Imran Hussain), who spoke of this not being the only crisis in the Home Office. I am afraid the crisis in political leadership and its lack of compassion is making for an agonising time for anyone who needs Home Office services. My hon. Friend the Member for Blackburn (Kate Hollern) spoke of a family who had to pay £1,000 to change the date of their holiday.
My hon. Friend the Member for Lewisham East (Janet Daby) reminded us that there are so many different reasons why people need to travel, and told some particularly heartbreaking stories. My hon. Friend the Member for Birmingham, Hall Green (Tahir Ali) spoke of his constituents who had been unable to attend the funerals of loved ones—an utterly heartbreaking position to be in.
My hon. Friend the Member for Bedford (Mohammad Yasin) again spoke of people’s missing family funerals and significant family events, not for public health reasons, but for admin reasons, which has had a devastating impact on his constituents. My hon. Friend the Member for Merthyr Tydfil and Rhymney (Gerald Jones) spoke of the Prime Minister’s claim that everybody is getting their passports within six weeks—an utter nonsense, when we have all shared constituency stories from our caseloads. Last but by no means least, my hon. Friend the Member for Newport West (Ruth Jones) spoke about the predictability of the surge in demand and asked why we were not prepared for it.
Alex Sobel (Leeds North West) (Lab/Co-op)
My hon. Friend is telling the stories of so many of our hon. Friends. I could not be here earlier in the debate, but I want to share a story from my constituency. Many of my constituents are frequent business travellers or academics. They cannot release their passport for 10 weeks. Many of them have been trying to get a one-week appointment online so that they can go in person and sort it out, but those appointments are not available online; nobody can get them, even though they cost double what a normal passport does. Is that not also a massive issue for frequent travellers?
Holly Lynch
My hon. Friend makes an important point, speaking to the variety of reasons why people have to unlock this backlog, whether for work or personal reasons. There are economic reasons why we must get productivity up and have people able to travel again, alongside the family connections that we need to see re-established and people’s ability to undertake holidays once again.
As the Minister for migration is back in his place, I must say that I am grateful for the occasions when I have been able to reach out to him and he has intervened on cases where I have made an appeal directly to him. However, I am privileged in that I have his mobile number; what we are trying to get to is a position where—[Interruption.] For purely professional reasons, for anyone who made an odd noise there. We are trying to get to a process whereby a constituent out there would not need to have access to the Minister’s mobile number in order to have their case resolved by this Home Office.
At a time when the cost of living crisis is hitting the country hard and after two years of family holidays having to be postponed and rearranged, Home Office incompetence is landing British families with yet more unnecessary costs as they pick up the tab for the failures and pay for fast-track passport services, or face losing hundreds of pounds in cancelled holidays. The number of monthly fast-track applications has more than doubled since December 2021, as other colleagues have said. In April this year alone, British families spent at least £5.4 million on fast-track services.
The Passport Office’s own forecasts show that it expects to receive more than 240,000 fast-track applications between May and October this year, at a cost of an incredible £34 million. The cost of passport failure is being passed on to families stuck between a rock and a hard place, at the worst possible time. Even the fast-track service, as we have just heard, is not always a guarantee, with the website often saying that there is no availability of appointments due to high demand. My constituents report that they are calling day after day with no success. One constituent emailed:
“Another stressful day has passed of getting no answers from the passport office. It’s nothing but incorrect information and false hope. I’ve arranged 3 call backs, one of them being from the upgrade team and not one of them have got back to me. I’m due to travel next Friday, and I have no hope whatsoever.”
The trade union PCS says that the Home Office originally estimated that 1,700 new staff members would be needed to deal with the backlog, but as far as we are aware—and we have had confirmation of this—only about 500 have actually been recruited. I would be grateful if the Minister confirmed the timeline for when those additional staff members will be joining their colleagues on the frontline.
In April, the Prime Minister reportedly said that he wanted to privatise the Passport Office, using more unparliamentary language than I have at the Dispatch Box. However, the Minister has confirmed to the House that most of the services within the process have already been privatised, with in-house staff dealing only with decisions on applications themselves. I suspect that it will come as a surprise to precisely no one to hear that the Prime Minister is not across the detail on this, but what does he think is left to privatise, and how exactly, based on the performance of the existing contractors, does he think it will improve the service? Looking at the three private service providers involved in passports, freedom of information requests published by the Mirror last month revealed that TNT, as the courier service for the Passport Office, has lost hundreds of passports and documents in the past two years despite applications being lower due to the pandemic, with 519 lost items in 2020 and a staggering 1,196 in the first seven months of 2021. This £77 million three-year contract was awarded in July 2019 and is due to be reconsidered this summer, so how do the Government propose to transform the courier service?
Sopra Steria, which provides frontline and support services including scanning, uploading and storage of documents, has its own backlogs, with PCS estimating that by April 500,000 applications completed by customers were awaiting opening and scanning on to Sopra Steria’s system. As we have heard, the performance of Teleperformance, which operates the helpline, has already been deemed unacceptable by Ministers. So how exactly does the Prime Minister think that to simply repeat the words “privatise it” is fixing a broken system that is already largely privatised?
Another constituent who got in touch shared their utter frustration:
“We got married on the 7th May after postponing 3 times. I applied for an urgent upgrade a week ago as I travel a week today and I’ve still not had a phone call back to make the payment and begin fast track. I have less than a week to get my passport to go on my honeymoon. I applied with plenty of time and also applied for the urgent upgrade.”
Another said:
“This issue has caused me and my family a great deal of distress, expense and now we are potentially looking at having to cancel our holiday, losing a significant amount of money.”
This Government are presiding over backlog Britain. If it is not passports, it is drivers’ licences, NHS waiting times, court dates, charging decisions, asylum decisions, housing waiting lists and Ukraine visas—and the list goes on. People cannot be expected to find the additional cash needed to bypass Home Office failure. They deserve better. This Government must apologise and find a way of delivering better.
Madam Deputy Speaker (Dame Rosie Winterton)
I need to emphasise once again how important it is for colleagues to come back for the wind-ups in order to be able to hear the responses from both the shadow Minister and the Minister to what they have said in their speeches.
Draft Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022
Holly Lynch Excerpts(2 years, 6 months ago)
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Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under you in the Chair, Ms Elliott.
I thank the Minister for his opening remarks. I was listening carefully. He and his colleagues will be aware that the Opposition expressed a series of grave concerns about the Nationality and Borders Act, which allowed for these provisions, but we very much recognise the practical nature of the changes in the draft order as we work collectively to keep our nation safe. We are satisfied that changes to the code of practice for examining and review officers under schedule 7 to the Terrorism Act are proportionate and appropriate to keep the country safe from the threat of terrorism.
The Minister outlined that this draft legislation will extend existing powers for use away from UK ports in specific circumstances. We recognise that small boats continue to arrive at varied locations, including remote beaches outside established travel hubs, and that measures have to be able to respond to that challenge. As the independent reviewer of terrorism legislation, Jonathan Hall QC, said in his consultation response:
“In principle, people arriving irregularly in the UK, should be liable to counterterrorism examination, as much as those arriving at sea ports and airports.”
I welcome that the Government have been clear that the powers cannot be used as a mass screening mechanism and that the provisions in the new order remain entirely separate from immigration enforcement, given our staunch opposition to the immigration and asylum changes brought about by the Nationality and Borders Act. We feel that the consultation and the Government’s response to it have improved this delegated legislation, and we particularly welcome the response I mentioned provided by the independent reviewer of terrorism legislation, Jonathan Hall QC.
If I may, I will ask the Minister to respond to two particular points. The consultation responses highlighted the fact that clarification would be beneficial about which facilities would be included under paragraph 28 of the draft revised code, which states that the
“presence of the person in an immigration detention centre, police station or equivalent location”
in certain specified circumstances may support an officer’s belief that a schedule 7 examination can be conducted. I note that the Government recognised the calls for clarity about the use of equivalent locations but argued that for the code to exhaustively categorise or list the various types of location would risk excluding some relevant locations or facilities simply because they were not explicitly included. Saying that is particularly relevant where some facilities are operationalised or closed at short notice—for example, because of covid-19.
Needless to say, given some of the facilities that were operationalised at short notice by the Home Office during the covid pandemic, and operationalised without public health guidance being adhered to, I would have liked to see a list of suitable equivalent locations available for scrutiny and would still urge the Government to consider that further.
We endorse the recommendation that examination locations are also able to be inspected under article 4 of the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment, to ensure that we are in keeping with article 6 of the European convention on human rights, and we hope that the Minister will confirm that that is the case. We also support Jonathan Hall’s recommendation that consideration should be given to training counter-terrorism police officers to deal with individuals who have arrived in the UK irregularly and therefore have special welfare considerations. We note that the Government have committed to considering that and so will the Minister update the Committee on any such discussions with the College of Policing and counter-terrorism policing in establishing training and guidance relevant to best practice in the exercise of schedule 7 powers?
We believe those recommendations to be sensible and appropriate, but I again stress that we recognise the stark reality of needing to be ever vigilant about those terrorist organisations and so-called lone actors who are ruthlessly opportunistic in seeking to exploit weaknesses in our defences. Consequently, it is right that we ensure that our national security legislation is dynamic in responding to contemporary and emerging challenges, if we are to minimise that risk.
National Security Bill
Holly Lynch ExcerptsMonday 6th June 2022
(2 years, 6 months ago)
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Holly Lynch (Halifax) (Lab)
It is a pleasure to follow the detailed and powerful contribution by the hon. Member for Wycombe (Mr Baker). It is an honour to close this debate for the Opposition. While all debates in this Chamber carry weight, no legislation can be more serious than that which concerns our national security.
Before moving to the substance of the debate, which has been exceptionally well informed and well managed, I want to pay tribute to our security services and police forces who worked so hard to make sure that the platinum jubilee could be celebrated safely, as it should be, this weekend. I have never been prouder to be part of our great nation than when seeing and taking part in the celebrations this weekend. From street parties across our communities, the lighting of beacons and the celebration of the emergency services at the magnificent Piece Hall in my constituency to the world-class performances and execution of the Platinum Party at the Palace and the royal pageant, it has been a people-powered celebration to mark 70 years of Her Majesty the Queen’s loyal service to the country. She has provided a masterclass to all of us in public service.
Yet behind those celebrations was a policing and security operation like no other in recent history. I was grateful to the Metropolitan Police’s gold commander, Deputy Assistant Commissioner Barbara Gray, for briefing on those efforts last week. I pay tribute to those on duty this weekend on the frontline of keeping us all safe. The police and security services work around the clock, ever-vigilant to the constantly evolving threats that we face as a country, whether in times of national celebration or on any other day of the week. We are truly grateful for their service, their bravery and their sacrifice.
As outlined by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary, in her opening contribution, we welcome the National Security Bill, which builds on the recommendations of the Intelligence and Security Committee and the Law Commission and delivers long-overdue updates to our current legislation. As threats and technologies have evolved and been exposed, so too have the gaps in the legislative defences necessary to keep our country safe from hostile state threats.
As my right hon. Friend outlined, however, the Bill still poses a series of serious questions as we seek to work through the detail. There are measures that we expected to form part of the Bill that are missing, as well as genuine questions about the oversight of the powers within it and the appropriate scrutiny of how and when those powers are used.
The measures proposed in the Bill have been a long time coming; the Chair of the Intelligence and Security Committee outlined just how long some of the measures in the Bill have been called for. The Home Secretary raised the appalling 2018 Salisbury poisonings and the need to update our laws to provide the legislative cover necessary in the face of the contemporary threats we face as a nation. While Russia’s illegal and despicable invasion of Ukraine has certainly focused minds, it would be wrong to say that the provisions in the Official Secrets Act became outdated overnight.
In his annual threat update, MI5’s director general Ken McCallum stated:
“The Official Secrets Act 1911…remains a cornerstone of our espionage legislation…in 1910, just six months into MI5’s existence, founding Director General Vernon Kell included in his first progress report a plea for strengthening the Official Secrets Act, as it was proving hard to prosecute espionage cases. Kell’s push led to the Official Secrets Act 1911…it is now—obviously—hugely out of date.”
Our security services need to have confidence in the legislation that underpins their vital work. They need a justice system that is ready and able to respond to those they identify and expose as acting on behalf of hostile states and to the tradecraft of their intelligence operatives.
I assure the Government of our commitment to engage constructively as we work to fortify the Bill, so it successfully ensures that the UK’s law enforcement and intelligence community has the modern tools, powers and protections that it needs to keep us all safe. In turn, however, we expect to be heard in the same spirit when we raise genuine concerns and issues. I suspect that it will not come as a surprise to the Minister when I say that perhaps the most glaring omission from the Bill is the absence of a foreign agents register. As hon. Members have already said, particularly those who have served on the Intelligence and Security Committee, not least my right hon. Friend the Member for North Durham (Mr Jones), it was promised by the Government in 2019 and repeated formally in the 2021 integrated review. Britain is lagging behind its allies and Five Eyes partners Canada, America and Australia, who all have variations of such schemes in place.
As recent events have unfortunately shown, a register is urgently required to ensure that individuals in this House, and leaders and decision makers across the country, know whether the lobbyists, PR firms or other professionals they encounter are acting in good faith to further genuine business interests or causes, or are instead acting on behalf of hostile states. I was particularly interested in the contribution of the hon. Member for Isle of Wight (Bob Seely) and some of his detailed proposals on that. As the notion of elite capture increasingly becomes a form of creeping corruption that all MPs and decision makers have a responsibility to steel themselves against, the legislation before us fails to deliver the transparency and clarity that a register would bring in assisting lawmakers and others in high office to protect themselves from becoming soft targets for those acting on behalf of foreign states.
I am grateful to the Minister and his officials for their time last week. Further to the words of the Home Secretary in her opening remarks, it is our understanding that the Government intend to introduce a foreign agents register in the form of a Government amendment to the Bill later in its passage through Parliament. I stress, as others have, just how vital it is that both Houses have the opportunity to scrutinise any such scheme. I therefore urge the Government to grant both the House and such a substantial addition to the Bill the respect they deserve and to bring forward plans for the foreign agents register before the Commons Committee stage, so that we can all do our due diligence in considering the proposals effectively before we get into the somewhat relentless intensity of line-by-line scrutiny of the rest of the Bill. Almost everyone who contributed to the debate made that point.
In addition to the absence of a foreign agents register and reform of the 1989 Act, we are surprised that the Bill does not go further to tackle head-on the online misinformation and disinformation that is being peddled by countries that seek to undermine us—a point also made by the hon. Member for Folkestone and Hythe (Damian Collins). It has been well documented that for many years now the Russian state has regularly pushed disinformation on social media, as part of its strategy to sow division and stoke tensions in the west. Information on one so-called Russian troll factory was reported in 2017, when journalists identified 118 accounts or groups on Facebook, Instagram and Twitter that were linked to the troll factory. The so-called trolls had contacted around 100 real US-based activists to offer financial help to pay for transport or printing costs to support their protests and action relating primarily to, as we have heard, race relations, Texan independence and gun rights.
Rather than support one side of a particular issue or debate, the troll factories typically encourage and offer financial assistance to groups from opposite ends of the political spectrum to amplify divisions. Disinformation has also been a facet of the Russian invasion of Ukraine. A special cybersecurity report from Microsoft found that in the run-up to the invasion Russian actors used disinformation on social media in an attempt to destabilise the Ukrainian Government and Ukrainian society. Just this weekend, The Times reported on how Kremlin trolls are stirring up anti-Ukrainian refugee sentiment online in Bulgaria, and they are no doubt attempting to do the same elsewhere.
Although there are clauses in the Bill that could offer some relevant new powers in very general terms, we are surprised that neither the Online Safety Bill nor this Bill present measures that are aimed at exposing the aggressive online activity I have described, addressing its scale, disrupting it and stopping it at source. We hope that, during the Bill’s passage, we can work together to enhance such measures. Given the evidence base and societal impact, a failure to do so would be a regrettable and massive missed opportunity.
Because of the Bill’s nature, it inherently gives new statutory powers to the police, security services and the Home Secretary. Labour recognises the requirement for the new powers in principle; nevertheless, it is important that within a mechanism that grants such powers there are appropriate safeguards and accountability. We firmly believe that the legislation would benefit from much more clarity on the face of the Bill about the appropriate scrutiny and oversight from either a relevant commissioner or independent reviewer.
As the Minister knows, we have engaged with him and his officials on our serious concerns about the drafting of clause 23, and I am grateful for the note he shared today with me and my right hon. Friend the shadow Home Secretary in response to those concerns. My hon. Friend the Member for Garston and Halewood (Maria Eagle) gave a typically detailed rebuttal of why clause 23, as currently drafted, is necessary, given the existing legislation. I hope the Minister will respond to her and to so many others when he sums up.
In addition to the introduction of a foreign agents register, we believe more needs to be done to protect the Government and their officials from becoming the potential targets of hostile states actors—much in the same spirit as the issues raised by my hon. Friend the Member for Rhondda (Chris Bryant). I am afraid there are outstanding questions about the conduct of the Prime Minister—if he still is the Prime Minister; he certainly was when I got to my feet—when he served as the Foreign Secretary, and I have written to the Minister about them.
I have asked questions at this Dispatch Box and tabled written parliamentary questions, simply asking whether the Prime Minister met the former KGB officer Alexander Lebedev in April 2018. The House deserves to know what happened, because if the then Foreign Secretary did not understand how inappropriate such a meeting would be—without officials and without close protection officers—at the height of the Salisbury poisoning, we need legislation that is unequivocal in its clarity. We will therefore table amendments to the Bill to address any such lapses in judgment, which stand to have consequences for our national security, while we await answers from the Government as to exactly what did happen in April 2018.
Once again, we in the Labour party are unwavering in our commitment to keeping the country safe. We will work with the Government to support these measures where they are right and overdue, and we expect to be heard and to be able to work together where opportunities for enhanced protections and greater oversight are necessary, appropriate and responsible. We look forward to Committee stage.
Preventing Crime and Delivering Justice
Holly Lynch Excerpts(2 years, 7 months ago)
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Priti Patel
Many of these issues are devolved matters, but this is such important work—a lot of good work is taking place through the integrated end-to-end approach, and also through the scorecards that we are now setting up—that I would be very happy for the hon. Gentleman to speak to our Ministers about best practice, learnings and how the work can come to Northern Ireland. There is, it is fair to say, a great deal more that we do need to do in Northern Ireland, and I know we have had these conversations many times.
The data reform Bill will modernise the Information Commissioner’s Office so that it can take stronger action against organisations that breach data rules. We now have more than 490 Crown court places available for use, which is comparable to pre-pandemic levels, and more than 700 courtrooms that can safely hold face-to-face hearings are open across the civil and family justice system. An additional 250 rooms are available for virtual hearings. In March, we announced the extension of 30 Nightingale courtrooms, and we have opened two new super-courtrooms in Manchester and Loughborough. Furthermore, we are ensuring sufficient judicial capacity by expanding our plans for judicial recruitment.
The Nationality and Borders Act 2022 will mean that we can focus our support on those who need it most, not on those who can afford to pay the evil people-smuggling gangs to come into our country. The Act increases the sentences for those coming here illegally and means that people-smugglers face life behind bars. It also makes it easier for us to remove dangerous foreign criminals, as demanded by the British public but not by those on the Opposition Benches or those lawyers working to undermine the will of the public. The British public’s priorities are those of this Government. We are on their side, and we will continue to do everything we can by making this Act viable and workable and delivering for the British people.
We are hospitable and charitable as a country, but our capacity to support the more than 80 million people worldwide who are on the move is not limitless. Many Labour Members and others on the Opposition Benches do not seem to understand that, but we do. It is why we have developed our world-leading migration and economic development partnership with Rwanda to deter illegal entry. We are providing solutions to the global migration challenges that countries across the world are facing. As ever, we hear very little from the Opposition, who seem to support the same old broken system and uncontrolled migration to our country.
Two terrorist incidents highlight how we can never be complacent. The attack outside Liverpool Women’s Hospital last year would have been a disaster, had it not been for the incredible quick thinking and courage of the taxi driver involved on the scene. The terrible murder of our dear friend Sir David Amess was shocking, but not without precedent. We have worked closely together, Mr Speaker, to tighten security for Members, and we will continue to do so, and this Government will continue to work with our Five Eyes partners to keep the United Kingdom and our allies safe.
The “National Cyber Strategy 2022” outlines my approach to tackling cyber-crime. We have terrorist activity committed online and information circulated by terrorist individuals and organisations. Going further, the G7 forum on ransomware launched new programmes, such as our work on economic crime, to counter illicit finance and commodities. Improving our international partners’ ability to disrupt organised crime and terrorist activity is a priority to which this Government are committed.
In the past 12 months, we have completed a review of police firearms licensing procedures in response to the terrible and tragic shootings in Plymouth last August. New statutory guidance came into force in November. It improves firearms licensing safety standards and will ensure greater consistency in decision-making. The measures in the national security Bill will further protect our national security, the British public and our vital interests from those who seek to harm the UK. It delivers on our manifesto commitment to ensure that the security services have the powers they need.
The Bill represents the biggest overhaul of state threats legislation for a generation. We have world-class law enforcement and intelligence agencies, but they face an ever-present and increasingly sophisticated threat. The Bill gives them an enhanced range of tools, powers and protections to tackle the full range of state threats that have evolved since we last legislated in this area. It will also prevent the exploitation of civil legal aid and civil damage payments by convicted terrorists. The Bill enhances our ability to deter, detect and disrupt state actors who target the UK, preventing spies from harming our strategic interests and stealing our innovations and inventions.
The Bill also repeals and replaces existing espionage laws, many of which were primarily designed to counter the threat from German spies around the time of the first world war. It will introduce new offences to address state-backed sabotage, foreign interference, the theft of trade secrets and the assisting of a foreign intelligence service. The Bill will for the first time make it an offence to be a covert foreign spy on our soil. A foreign influence registration scheme will require individuals to register certain arrangements with foreign Governments, to help prevent damaging or hostile influence being exerted by them here.
Holly Lynch (Halifax) (Lab)
Can the Home Secretary confirm whether the national security Bill will clarify whether it would have been inappropriate or unlawful for a Foreign Secretary to have met a former KGB officer, as we understand the Prime Minister did back in April 2018?
Priti Patel
If I may, I will not comment on that specific example that has been given. Actually, I think the focus should be on the legislation that is coming forward in this House, where there are plenty of debates to be had, rather than making a point like that. I think it speaks to how the Opposition treat matters of national security, and the disdain that they show to the significance of the threats posed.