National Security Bill

Debate between Julian Lewis and Steve Baker

2nd reading
Monday 6th June 2022 Commons Chamber

[Dr Lewis]

I am receiving indications that I may hear something in the summing-up speech, so I shall live in hope.

As I wish to leave scope for other members of the ISC to drill down into the detail of all three areas on which the Bill ought to be focusing, I shall confine myself to just a few comments on each. First—as we have said—we warmly welcome the repeal of the Official Secrets Acts of 1911 to 1939, with their references to century-old concepts of data targets, such as “sketches” and “plans”, which have long been superseded in the digital age. The new espionage offence created by clause 1 should enable the intelligence and security agencies more effectively to combat hostile state action in a world that has undergone a technological revolution in the modern era.

Clause 2 is a worthwhile attempt to protect valuable trade secrets, although we feel that there are issues of complexity and breadth of definition which will require simplification if this new system is to succeed. Clause 3 is strongly to be supported, both for criminalising the giving of assistance to a foreign intelligence service and for empowering the agencies and the police legitimately to unravel the hostile networks involved. Clause 12 creates a new offence of sabotage, at home or overseas: causing damage to vital UK assets or infrastructure, whether intentionally or recklessly. Clause 13 introduces an offence of foreign interference, but only for conduct that involves an intention to have a negative impact on the UK, for or on behalf of the foreign power in question. We suggest that it be broadened to cover those who behave recklessly, even if an intention to aid a foreign adversary cannot be proven.

Secondly, the failure radically to reform the Official Secrets Act 1989 leaves in place a requirement to demonstrate that actual harm has been caused by a civil servant or someone outside Government service when publishing classified information. However, the act of disclosing and specifying what harm has been done will often compound the problem and increase the damage; some prosecutions thus have to be dropped in order to prevent such further harm. Although the Law Commission has offered recommendations to cater for disclosures made genuinely in the public interest, those recommendations cannot even be considered other than in the context of the repeal, replacement or at least root-and-branch reform of the 1989 Act.

[Mr Steve Baker]

I absolutely support what my right hon. Friend says about the 1989 Act, section 1(1) of which states:

“A person who is or has been…a member of the security and intelligence services; or…a person notified that he is subject to the provisions of this subsection…is guilty of an offence if without lawful authority he discloses any information”.

There is no caveat about “damaging”. Is not the fundamental problem that a distinction is drawn between categories of person in how they are treated?

[Dr Lewis]

There is such a distinction. One could certainly argue that it is a graver offence for someone entrusted officially with secrets to breach that trust than for a journalist who thinks he has a scoop but knows that he might be harming the national interest to proceed nevertheless, recklessly or with deliberate intent to do harm. However, we are not talking about a spy rifling through a filing cabinet and taking pictures with his Minox camera; we are now in an age when a technician can download a gigabyte of information in a short period and have it published worldwide, unread even by the people who have published it. That is where there are huge gaps in the legislation, and closing them will require revisiting the 1989 Act.

The third leg is that there will be many practical issues with the contents and the proper parliamentary scrutiny of any amendment to the Bill to initiate a foreign influence registration scheme. Careful drafting will be required to catch those who are consciously and deliberately, or unreasonably and recklessly, acting on behalf of another state and its interests, without criminalising every parliamentarian who runs a bilateral international friendship group, for example. High on the agenda must be the issue of dodgy donations from questionable sources to political parties and campaigns—another good reason for the closest possible examination of the provisions that the Government eventually bring forward. Nevertheless, as has been pointed out, our Australian friends enacted their foreign influence transparency scheme as recently as 2018, while our US allies introduced their own legislation as long ago as 1938, so there is no shortage of precedents on which we can draw to get the legislation right and close at least one more gap in our national security arrangements.

National Security and Investment Bill

Debate between Julian Lewis and Steve Baker

Consideration of Lords amendments
Monday 26th April 2021 Commons Chamber

[Dr Lewis]

The ISC, on behalf of Parliament, is able to scrutinise the input of the intelligence agencies into these processes. It would not be able to scrutinise how that input is then handled, and the trouble is that because that input is top secret, the BEIS Committee would not be able to scrutinise it either. That means that there would be a scrutiny gap between what was being scrutinised by us as it went into the process of the new unit and what was being scrutinised by BEIS minus that sensitive material, so there would be no effective parliamentary scrutiny of the process whereby, as I said earlier, the highly sensitive security requirements were being balanced and offset against the commercial imperatives. Indeed, that may be the very reason why the Government are so reluctant to let the ISC see what is going on.

[Mr Steve Baker (Wycombe) (Con)]

I fear that my right hon. Friend may have just answered my question before I ask it, but I am most grateful to him; he is making his speech with tremendous passion and is very persuasive. I just looked up the definition of “top secret” and I am wondering what will be missing from the output of the process that would mean that there are some scrutiny gaps. I think he has just explained that he wants to scrutinise the process and I can see why he would make that case, but will he just give us some indication as to what he expects would be top secret in that analysis, if that is at all possible?

[Dr Lewis]

If I gave an example of something that would be top secret—even if I were in a position to do so because we had started the work that we are not being allowed to start—I would then immediately be breaking the Official Secrets Act so, no, I cannot, and I would not even if I could. However, what is a certainty is that where there are circumstances where the intelligence agencies are advising on the security aspects, for example, of a potentially hostile state buying, overtly or covertly, into a strategically important asset, such as buying up a company engaged in cutting-edge technology. This unit will have to balance that against the possible commercial advantages of major investment from that other country.

The fact is that nobody on behalf of Parliament will be able to scrutinise that process unless either these amendments are accepted or the ISU—this new unit—is added to the list of units already on the memorandum of understanding. As I have said before and say again, if at any time the Minister wants to give me the assurance that it will be added, I am happy to let these amendments go from the face of the Bill.

As I explained, this is the reason that the ISC was set up as it is. If any Committee could do what the ISC does, it would not be necessary for the ISC to have all those unique facilities and arrangements. That is why paragraph 8 of the memorandum of understanding between the Government and the ISC categorically asserts:

“The ISC is the only committee of Parliament”—

I will say that again:

“the only committee of Parliament that has regular access to protectively marked information that is sensitive for national security reasons: this means that only the ISC is in a position to scrutinise effectively the work of the Agencies”—

and please listen to these next few words—

“and of those parts of Departments whose work is directly concerned with intelligence and security matters.”

A footnote to that sentence helpfully explains:

“This will not affect the wider scrutiny of departments…by other parliamentary committees. The ISC will aim to avoid any unnecessary duplication with the work of those Committees.”

With that machinery already in place, it is all the more baffling that the Government are now refusing to use the very body they created. Without including oversight by a properly structured and fully cleared security body, the Government are not placing security at the heart of the Bill.

The Government’s third and final argument is that if the ISC had a role, it would encroach on the BEIS Select Committee’s remit. This, too, is baffling and not borne out by experience. The Government’s own MOU already expressly states that the ISC scrutinises the classified parts of some Government Departments, leaving the remainder to the corresponding departmental Select Committees. That is what has always happened, perfectly harmoniously, in respect of a number of other Departments, so it is, again, bizarre that the Government now see this as a problem when they themselves have already made express provision for it.

The ISC can work seamlessly with the BEIS Select Committee on oversight of the Investment Security Unit, as it already does with other Select Committees such as the Defence Committee and the Home Affairs Committee, and in respect of the work of the Foreign, Commonwealth and Development Office. Far from being an “overreach” of our remit, in this particular case the ISC is trying to prevent its existing scope from being reduced. The unit that currently carries out investment security work is based in the Cabinet Office. Consequently, it is already overseen by the Intelligence and Security Committee. The ISC already scrutinises these activities in their current form in the Cabinet Office, so it cannot be “overreach” to do in future something that we already do. If the Government do not maintain this existing ISC scrutiny when the new Investment Security Unit takes over, it will be a step backwards from the current position.

If national security really is at the heart of the Bill, the ISC, as the national security oversight body, must be allowed to oversee it. The Government gave assurances to the House in 2013 that the ISC would oversee all security and intelligence matters. It is as simple as that. The sensible solution is that which was proposed and accepted in the other place—namely, the amendments that we are now being asked to reject for, as I have demonstrated, no good reason.

If, for some reason we have not been told, the Government cannot accept provision for oversight on the face of the Bill, there is the other solution that I have previously indicated. The Justice and Security Act and the memorandum of understanding linked to it set out the ISC’s role and remit, which the Government expressly told Parliament was the oversight of all intelligence and security matters across Government, now and in the future. The memorandum of understanding mechanism was rightly described by the security Minister at the time, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), as “flexible” because

“it can be changed much more easily than primary legislation.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 98.]

The matter before us today is exactly as described in 2013: an area of Government in respect of which the ISC has oversight responsibility has been moved to a different Department. The memorandum of understanding could therefore be updated to reflect this, by way of a simple exchange of letters, to add the Investment Security Unit to the list of bodies covered by the MOU. The ISC would happily accept a commitment from the Minister to this effect tonight, in lieu of the amendment. Either method will ensure what is needed: real oversight of the national security elements of this legislation by the only body constituted and equipped to carry it out, rather than what might be described as “scrutiny in name only”.