Investigatory Powers (Amendment) Bill [ Lords ] (Second sitting)

Debate between Lord Beamish and Stuart C McDonald

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Stuart C. McDonald]

We are now looking at internet connection records. Whether we are for or against the provisions, the requirement in 2016 for companies to generate and provide internet connection records was a radical departure and makes the UK something of an outlier: as I understand it, there is no other European or Five Eyes country that allows the same sort of requirements to be made, certainly in relation to its own citizens.

As the Minister explained, there are various conditions on who can access the records. At present, the investigating bodies need to know which personal device they are looking for ICRs in relation to or know a specific time when a website was accessed to identify who was responsible for the events of interest to them. There is some judicial oversight, but not always. We are being asked to move a little further from that already fairly radical starting point and remove the need for a particular time to be identified, so as to have a general look at who uses certain internet sites and services over broader grades of time. That risks moving us step by step away from suspicion-based surveillance towards broader mass surveillance. People become targets of surveillance because of websites they have visited that are not only of questionable ethics, but potentially in breach of article 18 of the European convention on human rights. Various examples of how that might work are given in the explanatory notes, particularly in paragraph 120.

The Minister also gave some examples in relation to access to sites that are clearly illegal. I was quite surprised to learn that there are not already other powers that can be used to investigate who is engaging with such sites. If that is not the case, why not confine the power to sites that are clearly illegal in and of themselves, rather than enabling a trawling of data in relation to other sites that are not? I am not a tech geek, as will become more and more apparent the more that we debate the Bill, but the explanatory notes themselves confirm that there is a danger of and huge susceptibility to error here. Paragraph 123 says:

“Whilst clearly having the potential to provide significant operational utility it is recognised that such queries are highly susceptible to imprecise construction. As a result, additional safeguards are proposed in this Bill with the intention of managing access to this new Condition and mitigating public concerns.”

I am not absolutely convinced by the additional safeguards that follow in paragraph 124, which seem to revolve around training and various other requirements.

At the very least, I would prefer to see us go for independent judicial oversight in all cases, including authorisations under condition D2. As I understand it, under condition D1 a judicial commissioner would need to authorise what has been sought, but under condition D2 it could be internal. If the Minister wants us to expand the powers without the need for judicial authorisation in all cases, he needs to explain how often he expects the powers to be used and why judicial commissioner involvement in all such cases would not be realistic. Are there not other ways in which we can make this work while still retaining judicial oversight in all cases under the new provisions? I understand what the goals are here, but this is an example where it could be framed more narrowly and oversight could be strengthened.

[Mr Jones]

I agree with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and the ISC feels strongly on this issue. We are clearly speaking English and the Minister is speaking Japanese, because this is about understanding what is actually being given to the agencies without any judicial oversight, which is being dismissed as if these powers are no greater or more intrusive.

As the Committee will know, under the IPA an internet connection record is a form of communications data. It contains data on who has accessed something: it does not actually provide the content of what they have seen or been in contact with. However, under the IPA information can be sought to develop knowledge of who is speaking to who. I think the ISC see the value of this for not only security services but issues around child protection and organised crime, as has already been argued. We are giving the security services and agencies a degree of authorisation here, which I would argue they have not had up until now.

We then come to the argument made by the Minister and the Government that these regulations are not any more intrusive than what we have at the moment. I would argue differently because the power is broad. Previously, targeted discovery condition A, under section 62 of the IPA, required that the agency and officer know the service and precise time of use to discover the identity of an individual, so that they actually know what they are targeting. The Minister used the words “fishing expedition”—this regulation will be a fishing expedition. By default, it will bring in a broader range of individuals who have nothing to do with the target the agencies are looking at the time and connection records for, and are of no interest to the agencies or anybody else.

The Government are arguing that this regulation is no more intrusive—but it is, if we are dragging in a large number of people in that way. Actually, by not having any judicial oversight, they are allowing the agencies to agree that internally. Although the intrusion is not deeper, it is certainly a lot broader than what we have at the moment. The Bill says that the new powers can only be used for “national security” and the catch-all phrase

“economic well-being of the United Kingdom”.

I am still yet to be convinced of that terminology, but I understand that the Minister and the civil service like consistency across Bills, and that is why it is in this Bill.

Under sections 60A and 61 of the IPA, requests to obtain an ICR are like requests to obtain other communication data: they have to be “necessary and proportionate”, which runs through all of this. Again, the Government are allowing the agencies to decide what is necessary and proportionate. I am not suggesting for one minute that they are going to go on a fishing expedition, but again there is a problem with the Government’s approach to the Bill, and certainly with the agencies’ approach. They want these powers, and I do not personally have an objection, but we have to look at how other people, who are not drowned in the detail of this Bill, will perceive them. Some opponents would say, “Why should I be dragged into this?” It is really about giving public confidence; as the right hon. Member for South Holland and The Deepings said this morning, when the IPA was passed, it was about trying to reassure people.

It would be very simple to ensure that this regulation has independent judicial oversight, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has just said. I know the catch-all phrase that the Minister will come back with, because I am a quick learner: he will say, “The IPC has the ability to look back at anything.” Again, that is the haystack—where is the needle? It would be better and more reassuring if they were to have some judicial approval in advance. I will give the Committee one example. Let us suppose that we are looking at train records and patterns of behaviour on WhatsApp or a train-ticketing website. There is possibly a valid reason to do that—to see someone’s patterns of travel, and so on—but it will scoop up a lot of innocent internet users. The assurance here is that they will not be of interest and therefore they will not be part of it, but their information is being dragged into the system. Then a decision has to be made as to which ones people are interested in and which ones they are not.

That is a big change. I accept that it would not be the exact content that somebody accessed, but the connections would be there. It does not sit comfortably with me to leave such a big change to the security services. Knowing them as well as I do, I do not suspect that they will use the provision illegally or for alternative motives, but we have to reassure the public, and I do not think this does that. Would that be onerous? I am not sure that it would be. This comes back to the point that we have made about the ISC all the way through. If we are giving the security services extra powers, we need the counterbalance of a safeguard.

As the right hon. Member for South Holland and The Deepings said this morning, that was exactly how the IPA was approached. Clearly, he was a very good Minister, because he accepted amendments and suggestions, whereas only one has been accepted for this Bill so far. The Minister spoke this morning about working with the ISC. The Minister speaks to us, but he does not necessarily listen to what we say or take a great deal of interest in what we propose. This is an important point. It comes back to the fundamental point that if extra powers are going to be given, it is only right that they come with responsibilities and safeguards.

New condition D removes the existing requirement for the exact service and the precise time of use to be known. Basically, it will now be possible to do a sweep, which will mean dragging people in. Therefore, I cannot see the problem in having some oversight of these powers. I would like to know why the Minister thinks that condition D is not more intrusive. It is more intrusive, because a lot more people will be affected by it. I think the Government are hiding behind the idea that because it is not possible to identify what the individuals have actually seen, it is not really interesting. If that is the case, why have it in the first place? I know the reason for that, but it would be interesting to know what thought has gone into this and how many people will be dragged in. It obviously depends on how the provision would be used in practice. If we went down the street and said to people that we are giving these powers without any judicial oversight—the Minister will say that IPCO can always look at it, and I understand all that—I think that most people would be quite worried. We would give reassurance by providing that important oversight.

This provision certainly needs to be looked at. Is it of benefit and am I convinced that this is a new power that the agencies need? I am, and I think it is right, but coming back to the previous point, we have to ensure that we do not do anything that undermines what is done or that gives ammunition to those people who want to cast aspersions on what is actually done.

I think I know the arguments that the Minister will put forward. We will no doubt come back to this matter on Report, when there will, I think, be amendments from members of the Committee; and if we have an election wash-up, this is one proposal that I think will be pressed by the Opposition.

Investigatory Powers (Amendment) Bill [ Lords ] (First sitting)

Debate between Lord Beamish and Stuart C McDonald

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair, Mrs Cummins.

I echo what the shadow Minister says. We are all here to assist the brave personnel in our security and intelligence services, but that does not mean that we will not closely scrutinise this legislation. We did not oppose the Bill on Second Reading. Some parts are good, but we have indicated our serious concerns about other parts because we think the powers go too far. They have not been shown to be necessary and proportionate; rather, they are more for the convenience of the security and intelligence services. How these powers are drafted also causes us concern, because they seem to allow behaviours beyond what we were told the powers were going to be used for. At other times, it is the nature of the oversight that is a concern, as the Bill introduces potentially intrusive powers.

I have one other brief point to make, which I indicated I would make at last night’s meeting of the Programming Sub-Committee. I had hoped that this morning we could perhaps have had some witnesses to guide us through this process. I think that would have been very helpful. It was very helpful in 2016, when we were looking at the original legislation, and I regret that we do not have such an opportunity this morning.

The provisions on bulk personal datasets and so-called low/no datasets are an area where we fear that the legislation is rather more a matter of inconvenience than something that has been shown to be a necessity. That will emerge in the debate about clause 2, which contains quite a lot of the detail about how the regime is supposed to work. Basically, we have been told that there will be a significant increase in the use of bulk personal datasets. We have been told that scrutiny is too slow, so we will either have to remove it or, perhaps more accurately, water it down in relation to these so-called low/no datasets. Fundamentally, I do not like that argument. The Minister will need to make a compelling case.

When we discuss clause 2, it would be useful if the Minister told us how many bulk datasets are retained and examined each year currently; how many datasets it is envisaged will be retained and examined after these powers come into force; what percentage of the datasets he thinks would be considered low/no datasets; how long authorisation processes take currently and why they take that length of time; and why cannot we improve or accelerate that process in some way, rather than having to water it down in the way that this Bill suggests. We will ask the Minister for that sort of evidence, because he is asking us to do away with parts of the oversight system that were put in place in 2016, and we want to understand how that oversight system is causing a problem at the moment. If he cannot explain that, we cannot support this new regime.

[Mr Kevan Jones (North Durham) (Lab)]

It is a pleasure to serve on this Committee with you in the Chair, Mrs Cummins.

My hon. Friend the Member for Barnsley Central said very clearly that there is general support for the Bill. The need for it is self-evident: things have moved on since the passage of the 2016 Act—indeed, they have moved on very quickly in terms of the amount of data there is, not only data that the security services have to deal with but data in general life.

Bringing the legislation up to date is important, but if we look at the Hansard reports of the debates in 2016, when the right hon. Member for South Holland and The Deepings took the original legislation through the House, we see that there was then, quite rightly, concern that the state acquiring bulk data was intrusive into people’s private lives.

Having read those Hansard reports a couple of days ago, I accept that some of the concerns expressed in 2016 were overblown, as are some of the concerns expressed about this Bill. Frankly, if the accusations regarding what our security services are able to do were true, they would be 10 times, if not 100 times bigger than the actual security services we have today. Nevertheless, it is important in a democracy to ensure that the security services act proportionately—I am confident that they do—and that there is the necessary oversight of their actions and how they deal with the data they have. It is not just parliamentarians who need reassurance in that regard, but the public. The public need reassurance about the data that the state is holding.

Examples have been given, but frankly, they are a bit silly, because things such as the electoral register, which you, Mrs Cummins, I and everybody else can access, fall under the existing regime. The expectation that the data will not be made public is ridiculous, and the same is true of some of the other examples that have been given. For instance, some datasets for machine learning are open on the internet for everybody to see. I do not have any problem with that and I do not think that anybody else does.

Oversight, which we will discuss later, is important. We are giving the security services the powers to determine what is low and what is no. Do I trust that they will have the protocols in place to ensure that that process is done fairly? Yes I do, but I have been on the Intelligence and Security Committee for the last seven years; I know exactly how the protocols work internally in those organisations. To reassure the general public, we need a definition of how this process will take place. I will not touch on that now, but later I will raise the question of how we will have independent oversight of that process.

Neither I nor anyone else is saying that we distrust how the security services will handle those datasets, but one thing the ISC has been very clear on is that if we are going to extend the security services’ powers, there needs to be a corresponding extension of oversight to balance that. I do not want to put in place oversight that prevents operational effectiveness; it would be silly to give the security services powers and then make it impossible or too onerous for them to operate in practice, but striking a balance is important in a democracy.

We broadly got that balance right in the 2016 Act. Looking at international comparisons, we are way ahead of many other democracies in how we deal with oversight of those potentially very delicate issues.

National Security Bill (Seventh sitting)

Debate between Lord Beamish and Stuart C McDonald

Committee stage
Tuesday 19th July 2022 Public Bill Committees

[Stuart C. McDonald]

As the shadow Minister, the hon. Member for Halifax, set out, clause 32 introduces the power to impose STPIMs on an individual via a part 2 notice, and schedule 4 sets out the types of measure that can be imposed.

As I argued on Second Reading, none of us should ever feel comfortable about curtailing people’s liberties via administrative civil orders rather than as punishment for crimes that have been proven through trials. None the less, we acknowledge that such prevention and investigation measures are a necessary and useful part of combating terrorism, and our position on TPIMs has been to focus on trying to clip their wings, improve oversight and limit their invasiveness, rather than to oppose their use altogether.

We think that the balance of evidence shows a similar case for STPIMs. However, we should again be careful in our scrutiny of them, and not permit interference in people’s liberties without proper justification and appropriate limits and oversight. We welcome, for example, that the residence measures in paragraph 1 to schedule 4, which are among the most restrictive measures set out in that schedule, apply only to individuals who are thought to be involved in the most immediately serious activity. Some of the measures are broad, but they seem to be curtailed and properly restricted by the provisions in clause 33—which we will discuss shortly—ensuring that they cannot go beyond what is necessary, although we have some concerns about the various tests that the Secretary of State has to require before applying the measures.

As the Committee has heard, amendment 57 would take out paragraph 12 of schedule 4, on the use of polygraph tests as a means of assessing compliance. Our view is that as polygraph tests remain too unreliable and lack an evidence base, they are inappropriate tools for measuring compliance with STPIMs, especially in the light of the all the other means at the Secretary of State’s disposal, including the monitoring measures in paragraph 15 of schedule 4, as well as the full range of investigatory powers that the services have at their disposal. It is hard to see what paragraph 12 will add. As the shadow Minister said, polygraph tests are not currently used at all.

If there is a case for the use of polygraph tests and the Minister is keen to retain the power to impose such a condition, I ask him to consider removing their applicability in Scotland. There is a precedent for that: polygraphs were introduced for TPIMS in the Counter-Terrorism and Sentencing Act 2021, but during the Act’s passage, the Scottish Government indicated that they would not promote a legislative consent motion for polygraphs on the basis that, because polygraph testing is not currently used at all in the criminal justice system in Scotland, the fundamental change of introducing them should be a matter of principle to be determined by the Scottish Parliament.

The SNP welcomed the decision by the then Justice Secretary, the right hon. and learned Member for South Swindon (Sir Robert Buckland), who is now the Secretary of State for Wales, to remove the provisions on polygraphs that applied to Scotland. Following that concession, a legislative consent motion was eventually approved at Holyrood. If I recall correctly, the Northern Ireland Executive expressed similar concerns. We see no case for polygraphs, but we assume that the Minister does, and if he wishes to retain their inclusion in the Bill, we respectfully ask that he take the same approach as his right hon. and learned Friend by not applying the provisions to Scotland.

[Mr Jones]

I support the measures because they are an extra weapon in the armoury to fight against hostile state intervention in this country. Clearly, the arguments about the level to which the restrictions will be imposed are very complex. There will be cases in which the prosecution test will not be met but we still have evidence about individuals.

My only problem with the measures is in relation to how they will be used practically. As we all know, TPIMs have not exactly been uncontroversial in their prosecution. Will the Minister give us an understanding of how they will be used and in what circumstances? If the evidence is there—and I accept that sometimes that will be difficult, in the sense that a lot of evidence against individuals will be unable to be put in the public domain—when will the measures be used, and for what duration? That would give people some assurance that they will not be used for lengthy periods against individuals. I accept that in a number of cases the evidential test for prosecution will not be met, and therefore the measures may well be a useful tool in the armoury, but we need some oversight of how they will be used and their effectiveness.

On polygraphs, I have some sympathy with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Interestingly, the hon. Member for Hastings and Rye seems to be answering for the Minister; I do not know whether she is auditioning for the job, but I thought it was the Minister who replied to such things.

I think the jury is out, not just in this country but internationally, on the effectiveness of polygraphs. If we are to ensure that they will not be challenged legally, we could put something in the Bill. I am not suggesting for one minute that polygraphs be used on every occasion, but if one is used in a case that is then thrown out because of the unsafeness of the test, that would unfortunately weaken the tool. The Minister has to justify it. As I say, I would be interested to know about the oversight, and how long he envisages their being used.

National Security Bill (Sixth sitting)

Debate between Lord Beamish and Stuart C McDonald

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Ben Everitt]

That is probably beyond what I can say here, and indeed beyond what I am aware of. It is one of those situations in which, were I a Minister, I would be happy to write to the hon. Gentleman—but I am not. Far from gold-plating, as referred to by the hon. Member for Halifax, clause 23 does not create a blanket criminal law immunity for our intelligence officers. It does not change the application of other criminal law offences that overlap with those underneath the Serious Crime Act 2007. It provides no change to the UK’s international law obligations.

I assume that the Minister agrees that the approach undertaken in the Bill is more limited and targeted than the approach other key allies have deemed necessary to protect those working on their behalf. Indeed, last week we heard from Alex Younger, the former chief of the Secret Intelligence Service. During his oral evidence he noted that there is an international precedent for such measures. He was referring to Australia; I understand that it was section 41 of the Australian Intelligence Services Act 2001, where there is a much broader immunity. That Act states:

“A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.”

Clause 23 is much more limited than that example. Rather than a proposal for wholesale immunity, it will just remove the legal risk for individuals’ actions that are done in good faith and following all authorised processes. That risk should not be underestimated given the chilling effect that we have discussed over the past couple of weeks. That effect can prevent or even delay the sharing of critical intelligence with international partners. Thus, the line of argument that the provision is too broad does not really hold when considered in the context of what our key allies are doing in relation to sharing information.

I express my support for clause 23, and the core principle that this is the right thing to do. We do not expect the current criminal liability of the Serious Crime Act offences to sit with trusted individuals who are conducting authorised, highly sensitive and vital national security work to keep our country safe.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I rise to support a lot of what the hon. Member for Halifax has said already. Nobody on the Committee doubts the importance of collaboration; we all recognise how crucial that is. I do not think that any of us doubt that the services have approached the Government having identified what they perceive to be a problem, and that the Government are genuinely engaged in trying to resolve that. One of the challenges that we face as parliamentarians is the degree of confidentiality and secrecy that surrounds their operations, which sometimes makes it difficult for us—particularly if we are not members of the Intelligence and Security Committee—to properly understand the nature of the problem and how it can be resolved.

[Mr Jones]

I am very conscious of what the hon. Gentleman has said, but to date neither the Government nor the security services have provided any justification or examples to the ISC as to why the clause is needed.

[Stuart C. McDonald]

I am grateful to the right hon. Gentleman, who is a member of the ISC, for clarifying that. For that reason, I am not dead set in my opposition to the clause by any stretch of the imagination—I am open to persuasion. However, we need evidence through the ISC that there is a problem and that clause 23 is the best way to solve it. As matters stand, I cannot say that I have been persuaded of either of those things.

First and foremost, it remains difficult to see how officers of the services in question can commit an offence under the 2007 Act unless they intend an offence to be committed, or, secondly, unless they have a belief that their action will assist an offence. That is a high threshold, even before defences kick in.

We have heard already that the section 50 defence of acting reasonably applies. Given the “purpose” and “authority” under which any action of information sharing would take place, it surely seems very likely that that defence could easily be made out. That point has already been made by a member of the ISC this afternoon. It almost looks like that defence, in section 50(3) of the 2007 Act, was designed with employees of the agencies in mind. The Minister has asserted that the defence is vague, but they seem to be a perfect fit for some of the circumstances that we are considering.

Even if the Minister is correct, perhaps the better response would be to amend the defence, rather than disapplying schedule 4 altogether. It is not clear why it can be argued that the reasonable defence is any more vague than the concept in this clause of

“the proper exercise of any function”.

It is not clear to me what conduct that concept is and is not supposed to cover. We need clear explanations and I do not think we have been given them.

Will the Minister give an example of conduct that is a proper exercise of any function of the services, but that is currently subject to the chilling effect of the 2007 Act and would therefore be saved by the Bill? Why is such conduct not able to get over the threshold of the reasonable defence already? Why, as has been asked, is such conduct not able to be authorised under section 7 of the Intelligence Services Act 1994? What type of data sharing is subject to this chilling effect and what causes that effect? Is it the remote possibility of data being used for a very serious crime or the significant chance it could be used for a less serious crime? Is it both? Is it neither? It is very hard to get a handle on what precisely the provisions are aimed at.

The Minister knows that concerns were raised on Second Reading about the potential for the clause to have a much more significant effect on actions that could, for example, support rendition or torture. He has set out today and in correspondence that domestic and international law means that such action would not be protected by clause 23. We will give that further consideration, but, in my view, the Government have much more to do to persuade us that there is a real problem here, and one that requires legislative intervention.

Even if a problem does have to be addressed, I am still to be convinced that this is the right response. Are there other options we could look at? Of course there are. For example, in last week’s evidence there appeared to be the suggestion that it was not so much the risk of conviction that was feared, but the risk of an investigation and being dragged to the courts and having to establish a defence of reasonableness. That was one of the problems.

Different things could be done. The clause could be moved around so that it is not a defence, where the burden lies on the person accused. We could make it an intrinsic part of the offence in the first place, so that nobody is dragged to court and has to establish the defence. There are other things that could be done—for example, requiring certain authorisations for prosecutions and so on.

Let us have that discussion, assuming that we can be persuaded that there is a problem here. Are there different ways to address it? For the moment, we remain a little bit in the dark on what precisely the nature of the problem is, and are unconvinced that the provisions in the clause are the best way to resolve any problem that does exist.

National Security Bill (Fourth sitting)

Debate between Lord Beamish and Stuart C McDonald

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Mr Jones]

Possibly this historic day shows the effects of global warming.

I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of

“metals, oil or minerals for use for UK defence purposes”.

I would like to define why it has been outlined in that way in the Bill.

I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.

The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?

Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?

I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?

I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.

I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.

National Security Bill (Third sitting)

Debate between Lord Beamish and Stuart C McDonald

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Stuart C. McDonald]

I am grateful to everyone who has taken part in the debate and to the Minister for his response. As I say, I absolutely accept the case for a clause such as this one. However, the Minister’s explanation of the protections in place in respect of the two scenarios that I outlined falls a long way short of what I would regard as satisfactory.

I outlined three solutions or protections. One was the foreign power condition; I have explained already why both the NGO and the journalist in those scenarios would meet the foreign power condition, so that does not work. Thereafter, we are left with the Attorney General and the Crown Prosecution Service. That offers no protection at all. From the point of view of the rule of law, people need to know whether they have broken the law or are committing an offence that is punishable by life imprisonment. We cannot leave that journalist or NGO in that position by saying it all depends on what the Attorney General or the Crown Prosecution Service thinks.

I have no idea whether the Attorney General or the Crown Prosecution Service would regard that NGO and journalist as having committed an offence that they would want to prosecute. As Members have said, that leaves a big chilling effect on that NGO and journalist. They have no certainty that they will not be prosecuted for the activities they undertake. They open themselves up to the possibility of life imprisonment for what, on the face of it, has all the characteristics of a disclosure of information, which should be dealt with, if at all, under the Official Secrets Act 1989 rather than in this Bill.

[Mr Jones]

I have been told that this may be outside the scope of the Bill, but it seems to me that what is missing from it is a public interest defence for those individuals. That protection not being in the Bill opens people up to what the hon. Gentleman describes.

[Stuart C. McDonald]

That is a fair point. In the light of the lack of satisfactory safeguards we have heard this morning, we may have to revisit that question. There is an issue of scope in relation to sticking that into the 1989 Act, but I do not see any reason why we could not include it in some of the offences in this Bill. Unless the Government can come up with better safeguards than have been offered this morning, we are going to have to revisit that.

I urge the Minister to go away and think about this issue. I am actually more worried about those two scenarios now than I was at the start of the day. I am not absolutely sure that the amendments that I tabled are the right ones, so we will revisit the issue on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

Obtaining or disclosing trade secrets

Question proposed, That the clause stand part of the Bill.