National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on Amendment 113, and I commend the intentions of the amendments put down by colleagues on the Labour Benches.

What we are talking about here is how we alert the public to the nature of the threat. The Security Minister in the Commons indeed said that one of his greatest concerns in approaching this Bill was to make the public aware of the threats which we face. In the Minister’s absence, one of his colleagues on the Bench, the noble and learned Lord, Lord Bellamy, said that the overriding purpose of several clauses in the Bill is to convey a message. He said that this is above all a declaratory Bill, rather than a Bill which actually intends to do things, but these amendments are about the Government failing to send a message and, indeed, preferring not to talk about some of the threats which we face. After all, the Bill should alert us not only to the nature of the threats but to where those threats are most likely to come from. I note that the Minister said very little about Russia and not that much about China, North Korea or Iran but did his best to defend the idea that what we regard as friendly foreign powers should be included in our potential concept of threats, as if the message of this Bill should be “Beware of foreigners, particularly those associated with Governments whether democratic or not”. I hope that is not the intention of the Bill, but that is what it looks like at present.

The ISC report states very clearly that there are a number of threats—of course it is concerned with Russia —and that

“it is … the Committee’s view that the UK Intelligence Community should produce an … assessment of potential Russian interference in the EU referendum and that an unclassified summary of it be published”.

The Government have refused to do that, and the only statement in their response about why not is that they have received no evidence of successful interference in British politics, which means that they are aware of a whole range of attempts to interfere in British politics. It might be quite helpful to inform political parties and the public about what those could be.

The Government’s July 2020 response to the ISC’s Russia report is very interesting in a range of ways. It has a section which it entitles

“Defending UK Democracy from Foreign Interference”


and flags up the new defending democracy programme, which was established in 2020, about which, so far, Parliament has been told remarkably little. The Security Minister made a speech about it some weeks ago which was not that much more informative, but he assured us that the defending democracy task force had held its first meeting in November last year, two years after July 2020. I think it would be helpful in informing and alerting the public if we were all told a little more about the defending democracy programme and the defending democracy task force.

The Government’s response goes on to state:

“The Committee will also be aware that … the Government has concluded that it is almost certain that Russian actors sought to interfere in the 2019 General Election.”


The public were not told about that very much either. We all understand that this is mainly because the interference was towards the Conservative Party and the Conservative Party has many links with Russia, Conservative Friends of Russia and so on, which it prefers not to spell out, which may be partly why we are talking about so many other different countries. We remember Boris Johnson’s attempt as Prime Minister to hobble the Intelligence and Security Committee. Thankfully, that has now passed, but the issue of foreign interference in UK politics and public life is an important part of what we are focusing on and should receive more attention.

I have on a number of occasions in recent years argued for a proper review of the golden visa scheme—the tier 1 investor scheme. The Government finally closed it last year and promised to conduct a review. Instead of publishing that review, we had a Written Statement on 12 January 2023 with which the Minister will be familiar because the Statement to this House is in his name. It has no reference to national security risks under this programme. It talks entirely about illicit finance and criminal effects, and in a short two pages it says really very little about the problem as a whole. It states:

“The route attracted a disproportionate number of applicants from the countries identified in the UK’s National Risk Assessment of money laundering and terrorist financing 2020 as particularly relevant to the cross-border money laundering risks faced and posed by the UK.”


The Statement does not say, as the Wikipedia entry on Ben Elliot says, that Ben Elliot raised £2 million in and around the 2019 general election from Russians resident in Britain who were close to the Putin regime. That is something which ought to concern us and about which the Government certainly ought to have been a great deal more concerned. The ISC Russia report indeed talks about the growth of a community of “enablers” in London to service the Russians who had penetrated British political and public life. Ben Elliot’s company, Quintessentially, was one of the leading aspects of this and declared that it specialised in servicing Russian clients.

I stress this not simply to raise a particular name but, after all, he was co-chairman of the Conservative Party—with James Cleverly, the current Foreign Secretary—for 18 months, so we are getting fairly close in to influence and interference here with someone who was described as the Tories’ main fundraiser. Much of this was informal, of course, but the Bill talks a great deal about informal arrangements.

These amendments ask for proper information to Parliament, a stronger role for the Intelligence and Security Committee—which the last Prime Minister but one attempted so ignobly to cut down—and the publication of the review of the golden visa scheme so that we can understand just how far these people penetrated into British public and political life. I remind the Minister that the ISC Russia report says at one point that the penetration of rich Russians into British society and public life had gone so far that it was difficult to disentangle and that we now had to be concerned to mitigate those risks rather than to remove them.

All that the Government say on illicit finance and money laundering in their response to the ISC Russia report is:

“The Government agrees that the transparency of information about political donations is important.”


They then go on to talk about links to Members of the House of Lords. They say nothing about the duties of political parties to ensure that they know where they are getting donations from. No doubt we will come back to this before and during Report.

There are a number of holes in what needs to be done in the Bill to make sure that we strengthen our national security against foreign interference. I trust that the Minister will have some good answers and will come back to us off the Floor to discuss some of these concerns further.

[Lord Coaker (Lab)]

My Lords, I will speak primarily to my Amendment 120A but I thank the noble Lord, Lord Purvis, for his Amendment 112, signed by the noble Baroness, Lady Smith, which raises some extremely important points around the Russia report published by the ISC in 2020 and the frustration that many of its recommendations either have not been implemented yet or simply will not be implemented by the Government. It would be helpful for the Committee and for us all to know the Government’s intention with respect to all that. As the noble Lords, Lord Purvis and Lord Wallace, said, many important points were raised and it would be interesting to see the Government’s view on that. With respect to the noble Lord, Lord Wallace, and Amendment 113, some very important points were made about tier 1 visas, where all that has got to and what progress we have made.

Amendment 116 from my noble friend Lord Ponsonby, which has been referred to in passing by other Members of the Committee, deals with reporting on disinformation originating from foreign powers. I think it was the noble Lord, Lord Wallace, who referred to the issue of how far this country is witnessing attacks from foreign powers that wish to pollute and infect our system, whether businesses or our electoral system. It would be interesting for us to know the extent of that and what the Government are doing about it—as far as the Minister can say within the constraints of this.

It is a question worth asking, because one of the things I think the public want to know is who is responsible for co-ordinating the activity across government to ensure that our country is protected. Is it MI5? Is it GCHQ? Is it the various security parts of different departments? Who brings all that together? I think it is legitimate and does not compromise national security in any way to ask who is responsible for that. How is the activity co-ordinated between a national level, a regional level and a local level? The integrity of all our databases requires action not only in Westminster but in a rural village in the middle of nowhere. Those are legitimate questions, and I think the public would like to know about that.

What is the Government’s view of how far they can inform the public of the threat, in so far as the public can then help with respect to maintaining their own security and, by doing so, that of our country? That was the purpose of Amendment 116. It is obviously a probing amendment, but it seeks to understand something about the scale of the threat we are facing regarding this information and what can be done about it.

My Amendment 120A—which I should say at the outset is supported by my noble friend Lord West, who for personal reasons is unable to be with us, and, as I understand it, by the ISC—would require the Government to revise the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee to reflect any changes to the intelligence and security activities undertaken by the Government as a result of this Bill. In other words, it seeks to update the ISC’s remit to ensure that it has the power to effectively scrutinise intelligence and security activity that will be taking place across government under this new national security regime.

Alongside the Justice and Security Act 2013, the ISC’s Mo outlines, among other areas, the ISC’s remit and the organisations that it oversees. This includes the expenditure administration policy on operations of the agencies, as well as several organisations that form part of the intelligence community. The Bill modernises the offence of espionage and creates a suite of new tools for the intelligence community and law enforcement to defend the UK against state threats.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, with the greatest respect, this is a different Government and we have moved on. The ISC very much has the respect of certainly this part of the Government. If I may say so, I have answered the principal question that was being asked: the Prime Minister will indeed consider the proposed changes in due course.

[Lord Coaker (Lab)]

I understand that the Minister is saying that the Prime Minister will review it, but does he agree with me that it would help if the Prime Minister actually met the ISC? The Intelligence and Security Committee annual report states:

“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work, report on key issues … However, the Committee has not had a meeting with a Prime Minister since December 2014. In the previous Annual Report, we stated that we would seek a meeting with the Prime Minister this year; unfortunately, despite requests for suitable dates, we are yet to receive a response from the Prime Minister. The Committee urges the Prime Minister to meet with it as a priority.”


May I ask the Minister to take that message to the Prime Minister? If he is looking at reviewing the MoU in due course, it might help him to meet with the committee.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very fair point. I will certainly make sure that that message is conveyed. As I have said, the Government do not think it would be appropriate at this point to mandate the Prime Minister to update the MoU as proposed, therefore we cannot support this amendment.

I now turn to Amendment 113. The Committee will be aware that the Government committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity and/or being engaged in serious and organised crime. The Government have set out the findings of the review of the operation of this route and acted to close it. I think it was in February 2022. I therefore submit that the amendment is not necessary.

I note that the noble Lord, Lord Wallace, was selectively quoting back to me various aspects of the WMS. I might selectively quote back to him—I suppose I am quoting myself here. I also said:

“Given the importance of ensuring the independence of the law enforcement process I am unable to say more on the operationally sensitive work being taken forward in this area. Whilst unable to comment specifically due to operational sensitivity of work - as an example of the range of actions we are taking I can say that we have already sanctioned 10 oligarchs who had previously used this route as part of our extensive response to Russian aggression in the Ukraine.”


I think that gives answers as to why we have perhaps not commented in the detail the noble Lord would like.

The noble Lord, Lord Wallace, has also accused me of not talking enough about certain states and talking too much about our allies. He, I think, suggests that this is for party-political reasons. I am disappointed that the noble Lord, Lord Wallace, would think so little of the Government Front Bench in this House. I gently remind him that, when I am talking about our allies, I am usually responding to questions he has asked me.

I say to the noble Lord, Lord Purvis, that I am afraid I do not have all the stats he asked for about Russian money, but I will endeavour to find them. I do not know if they sit within the Home Office, but I will find out where they are, and I will happily write to him.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the Minister’s thorough reply, notwithstanding some of his responses, which he prefaced by saying that he knew they would disappoint the noble Lord, Lord Coaker.

[Lord Coaker (Lab)]

There’s nothing new there. I am joking.

--- Later in debate ---

Moved by

[Lord Coaker]

119: After Clause 89, insert the following new Clause—
“Assessment of interaction with the Official Secrets Act 1989The Secretary of State must publish an assessment of how this Act relates to the Official Secrets Act 1989.”Member’s explanatory statement
This amendment intends to probe to what extent the Bill furthers the government’s objective to update the Official Secrets Act 1989.

[Lord Coaker (Lab)]

I will not keep noble Lords too long on this amendment. There are a couple of points I wish to make and a couple of questions to ask. I say at the outset that Amendment 119 is a probing amendment, obviously, but it allows us to discuss reform, or not, of the Official Secrets Act 1989. As we know, this National Security Bill does not deal with that, but earlier Official Secrets Acts of 1911, 1920 and 1939, which deal with espionage. In that sense, this Bill represents a missed opportunity and leaves many unanswered questions which simply cannot be ignored, questions which Amendment 120 in the name of the noble Baroness, Lady Kramer, setting up an office of the national security whistleblower, also seeks to address.

In the Government’s consultation document for the state threats legislation reforms, it is clear that changes to the Official Secrets Act 1989 appear to be on their way. Is it correct that they will reform the Official Secrets Act 1989 as soon as possible? If they will, can the Minister give any indication of what “as soon as possible” might mean—other than “as soon as possible”?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Indeed, the Law Commission made a recommendation about a potential reform to the 1989 Act. As I have already said, that is not the purpose of this Bill and will be a matter for a future reform, which will not be conducted immediately, as I already explained in answer to the point from the noble Lord, Lord Coaker. The Law Commission’s recommendation will have considerable weight but, at this stage, I cannot prejudge any government decision in relation to the 1989 Act.

In last week’s debate, the noble Lord, Lord Coaker, asked about the Government’s plans to update internal whistleblowing guidance. I can confirm that the Government regularly keep this guidance under review and, last year, they updated it to include specific reference to how to raise an issue that would require disclosure without breaching the Official Secrets Act 1989. The updated internal guidance has been shared across departments and agencies, with confirmation from all Whitehall departments that a review of their own processes and procedures has been undertaken or is planned.

Across government, organisations have also continued to undertake activities further to develop a safe and supportive culture for raising concerns. Over the last year, the majority, including all 17 Whitehall departments, have undertaken communications through awareness-raising events and campaigns, including an annual “Speak Up” campaign.

We of course understand that journalists have a specific and important role to play in holding government to account in our democratic society. We also understand that responsible journalists do not want unwittingly to put lives at risk or compromise national security. That is why we have robust processes in place which enable journalists to mitigate the harm caused when considering the publication of potentially damaging information.

For example, during the Government’s public consultation on the Bill, several media stakeholders commented on the value of the Defence and Security Media Advisory Committee—the DSMA—which alerts the media to the consequences of disclosing certain types of information and provides advice on how to mitigate damage, while leaving editors to judge whether to publish or broadcast. A number of editors already engage with this valuable process when considering the publication of sensitive information, and we encourage them, and others, to continue to do so.

The Government are committed to ensuring that these channels are safe, effective, and accessible. Accordingly, for the reasons I have just set out, the Government, with regret, cannot accept the tabled amendments and invite their withdrawal.

[Lord Coaker (Lab)]

My Lords, I will be brief, but will start by thanking the Minister for his response and all noble Lords for their contributions to this short but important debate. I am grateful to the Minister for following up on my question from last week about what was happening with the updating of guidance for people in departments across government who wish to raise concerns. But frankly, the headline from what the Minister has said is that the Government have kicked the reform of the Official Secrets Act 1989, which was never particularly on the immediate horizon, into the long grass. That is deeply disappointing because, irrespective of one’s view, the issues of the public interest defence and people being able to come forward—whistleblowers, if you want to call them that—will not go away. Reforming the Official Secrets Act would have enabled us to debate that and come up with an Act that is relevant to 2023 and beyond. As I say, it is deeply disappointing that the Minister has effectively kicked that reform into the long grass, and that is the headline from this response to the amendments. With that, I beg leave to withdraw my amendment.

Amendment 119 withdrawn.

Asylum Seekers

Lord Coaker Excerpts

Tuesday 17th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the noble Lord. It is clear that one of the major pull factors for people crossing the channel is that they hope to work in Britain. Legally allowing people to work would increase the pull factors for them to embark on dangerous and illegal journeys across the channel.

[Lord Coaker (Lab)]

My Lords, time after time, we hear the Minister try to explain away the chaos of the Government’s asylum policy. Time after time, new legislation is announced, chasing headlines. Time after time, the Chamber hears the appalling asylum case figures, with the shocking human consequences, as we have just heard again today. I will ask about one example: when will the doubling of asylum caseworkers to 2,500, as briefed by the Prime Minister last year, happen? Yesterday, the Minister could not confirm that the recruitment of those caseworkers had even started. It is a shambles, is it not?

[Lord Murray of Blidworth (Con)]

The Home Office currently employs about 1,280 asylum decision-makers and will double the number of caseworkers to help to clear the asylum backlog by the end of next year. Recruitment and retention strategies are in place, with the aim of increasing staffing, reducing the output in the number of cases awaiting a decision and increasing outputs of decisions. We have increased the number of asylum caseworkers by 112%, from 597 staff in 2019-20. We will recruit more decision-makers, which will take our expected number of decision-makers to 1,800 by summer 2023 and to 2,500 by September. We have implemented a recruitment and retention allowance, which has reduced decision-maker attrition rates by 30%, helping us to retain experienced asylum decision-makers.

Immigration (Leave to Enter and Remain) (Amendment) Order 2023

Lord Coaker Excerpts

Tuesday 17th January 2023 Grand Committee

[Lord German (LD)]

My Lords, I recognise that this is a very small change to the legislation but I am of course tempted to stray into other immigration and right-to-remain areas. However, temptation is not necessarily the best way of approaching this order so I will stick to the instrument before us.

The first thing I want to say is that I have just returned from a parliamentary delegation. My delay was such that I was not able to find any transport whatever from Heathrow Airport; I would have had to sleep on the floor had I not been able to take a taxi. The reason for that was the snaking queues. If you extend the eligibility, which is a reasonable thing to do, you must have a sufficiency of e-gates. Clearly, there are insufficient numbers at Heathrow. This happened late at night but it could have been early in the morning, or whenever; I have experienced the queue being quite extensive probably three or four times in the past five months. Extending the queue by giving more people this opportunity does not solve the real problem, which lies in an insufficiency of e-gates.

There are a number of related questions about children. I have observed them queueing with their families to get through on a separate basis. I have also observed people who are elderly or need support being helped by a family member to make sure that they put their passport in the slot and withdraw it in the right way. It is not easy to do that. The main support that was given was having an official standing by who could tell people exactly what to do. I wonder whether there are sufficient staff to handle an increased number, given the difficulties already being experienced.

It is likely that, when people put their hand on their passport and put it on to the reader, it will not work the first time. I have never had a reader work with mine the first time—well, perhaps once. It has always been after two, sometimes three, attempts. That is nothing to do with me because my hand is in the same place and it is the same passport. I have never understood why it fails each time then, on a subsequent occasion, putting it through works. That may be the technology; it has worked on the first occasion in other countries but not here in the UK. I have no idea why that is.

The efficiency of the e-gate system needs to be improved as well. I observed in front of me, having had plenty of time to watch as the queues lengthened, how many people had to go through more than one attempt to get the gate to open. It needs to be improved in efficiency. I would like to understand, if the Minister can tell us, whether gate efficiency can be improved and what the problems are in the second, perhaps third, attempt to get them to work.

The other problem that this test check of an age group will come against is when families have one child of 10 and an eight or seven year-old. They are not going to separate; they are going to take them together. You have to have a family in which there is a 10 year-old and any other children have to be older than 10. While it will be an experiment, I have no idea—perhaps the Minister can tell us—of the number of families coming through with only children aged 10 or older with them and who will be able to take advantage of this.

The other question I have is about the height of individuals. Anybody who has taken any children to a theme park will know that they have measures of height by which you can take part in certain rides. When you come to the positioning of a child against it, is there a height problem for younger children who are perhaps small in stature and will have to put their hand almost as high as their head to get their passport in? Will the machinery accept that? I hope all of this has been thought out. If it has not, it will probably become clear when the experiment takes place.

My final point concerns what you might call an ESTA approach in USA terms—that is, where you have to complete a document in advance to visit. Will the system already have the ability to understand such a certificate when the UK introduces them? Will it already be built into the software? I think it applies to every country—apart from the UK and Ireland, obviously—that currently has the ability to use these e-gates. As I understand it, there will be a requirement—the Minister can confirm this—to fill in an ESTA-type document that deals with your entry. Will the software in the e-gate system accept that, so that the people going through will already have had that check, or will anybody with one of these certificates have to be peeled off and sent to another means of manual checking?

There is automation, obviously. Anything that can be done to speed up the system of getting people through into the United Kingdom properly and swiftly will be welcome. The only question is whether these will all be tested in the experiment that is about to be undertaken. Could the Minister address those specific issues—height, the ESTA-type certificates, the shortage of gates and whether there will be sufficient assistance—in replying to this debate? Otherwise, I am satisfied that this is a reasonable thing to do.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his helpful introduction to this order. Like the noble Lord, Lord German, I think there are a number of questions of detail that we need to ask and put on the record to ensure that, when the order goes forward, we are all clear about what it means and how the pilot will operate. Although it is a small change to the rules, it is a significant and important one. The pilot, if agreed, will require very careful monitoring.

At the heart of this is safeguarding children. That is everything, particularly when we are talking of very young children at the age of 10. Children aged 12 are obviously young, but we are entering the realms of quite young children who will be able to pass through e-gates at borders, so I was pleased that the Minister talked about the pilot testing whether that age is appropriate.

Banks: Forged Customer Signatures

Lord Coaker Excerpts

Monday 16th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

As I have just said, I am afraid that I am unable to comment on individual cases. I do not know the circumstances of this particular case, but I will find out more.

[Lord Coaker (Lab)]

My Lords, these victims of fraud by banks have been waiting nearly four years, following the initial statement from the Minister and others that they would look into this issue. One can only say that, if the banks were the victims of fraud, they would act a lot more quickly than they do when it comes to acting on behalf of their customers who are alleged to be the victims of fraud. I think what they want to hear from the Minister is what “imminently” means? Does it mean next week? Does it mean next month? Does it mean next year? These victims have been waiting too long for justice. It is about time the Government told the banks to get a move on.

[Lord Sharpe of Epsom (Con)]

My Lords, it is not the banks which need to get a move on. As I said earlier, the decision has been communicated to some of the complainants, but the Treasury Select Committee, certain remaining complainants and other relevant parties are not yet aware of the outcome. We should expect all necessary persons to be notified in the appropriate manner; beyond that, it would be unwise of me to comment on operational matters.

National Security Bill

Lord Coaker Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, Amendments 76, 77, 78 and 79, in the name of the noble Baroness, Lady Ludford, enable us to discuss the state threats prevention and investigation measures. As she outlined, Amendment 76 seeks to set a 14-hour limit on the time that someone subject to such a measure has to remain in their residence. Amendment 77 would require the Secretary of State to receive confirmation from the police that prosecution is not realistic, rather than requiring only consultation before a measure is imposed, as outlined in Clause 44(1). These are simple but important amendments, as the noble Baroness, Lady Ludford, outlined, and the Government need to respond to them logically, particularly as they are recommended by the JCHR. In Committee last time, we all referred to the importance of the JCHR recommendations that come before us. It is particularly important that questions such as these are asked because, although we accept that STPIMs are a useful tool to have available, they impose intrusive restrictions on an individual, outside the criminal justice process, as civil measures.

In view of Amendment 76, if there is no time limit, what is acceptable? Are 20 or 21 hours acceptable? As the noble Baroness, Lady Ludford, pointed out, these are essentially curfews on an individual. Although they may be justified—no one is questioning the fact that sometimes they may be necessary—some thought from the Government about what we actually mean by the imposition of time limits or curfews on an individual, and how that might be arrived at, is important. Secondly, should we not always seek to prosecute, as Amendment 77 seeks to do? The police confirming that it is not possible is a real protection, while not compromising national security; again, that is the aim of all of us.

On the more general question of STPIMS, legal aid will be available to individuals but, if they are to challenge effectively, will individuals subject to such an order be fully aware of the reasons why it has been imposed and able to challenge the imposition of such measures? Who will oversee the use of these powers? Can the Minister reassure us that, in making such a decision on application by the Secretary of State, the courts will be given all the information that they need to properly inform their decision, and that they will not be used arbitrarily, out of frustration that a criminal prosecution cannot be pursued? That was a really important point from the noble Baroness, Lady Ludford: this is not a substitute for prosecution but something to be used where, for whatever reason, it is simply not available. But we need some reassurance that criminal prosecution will always be pursued as the first option.

We accept that there is a potential need for such measures, but, given their civil nature and the very real impacts on the liberties of individuals, even if necessary for national security reasons, they demand of us the need to be ever more vigilant when it comes to freedoms and human rights within a democracy. Like the noble Baroness, Lady Ludford, I look forward to the Minister’s response.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.

Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to

“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.

Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.

Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.

I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.

In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.

The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.

On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.

Windrush Lessons Learned Review: Implementation of Recommendations

Lord Coaker Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, is not the treatment of the Windrush generation one of the most shameful episodes in our post-war history? These people helped rebuild Britain, and their reward was that many were wrongly detained and threatened with deportation; 83 people were actually deported. Why have only 1,300 out of an estimated 15,000 been compensated so far? Why are the Government now going to implement only some of Wendy Williams’s recommendations, not all as originally promised? Can the Minister update us on the figure? Is it still eight out of 30? Have the recommendations for a migrants’ commissioner, and to extend the powers of the Independent Chief Inspector of Borders and Immigration, been dropped? We still have no anti-slavery commissioner appointed. Wendy Williams demanded cultural change, but on the 75th anniversary of the Windrush generation, we are still a long way from it. Would it not be the final betrayal of that generation if there were not the real change that Wendy Williams demanded?

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I agree with the noble Lord that the injustices of Windrush were an outrage. Clearly and unfortunately, it was Governments of all complexions who allowed that scandal to unfold. The noble Lord asked me whether the Windrush compensation scheme is failing. The Government—and I, as the supervising Minister for the Windrush compensation scheme—are very clear that we must compensate members of the Windrush generation and their families for the losses and impacts they suffered as a result of the scandal. We believe that we have made significant progress, having now offered a total of more than £59.58 million in compensation. As to the question about recommendations, the noble Lord knows that the Government will not comment on leaks, and I do not propose to do so today.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I start by saying that if the noble and learned Lord, Lord Judge, is a pupil barrister, I do not know what on earth that makes me. We shall see.

I start with a comment that I know will be supported by all members of the Committee: if the story on the front page of the Sun is accurate, it reminds us of the debt of gratitude that we owe to the security services. They seem to have foiled a plot to import uranium at Heathrow this morning. If that is accurate, it is something that we in this Committee should note, because I know that the security services and those who work on our behalf in all these areas read our proceedings, and they should not mistake or confuse the very real debate that is going on here about the best way for us to go forward, and the best legislative context for us to have for our Armed Forces and our intelligence services, with any sense in which we underestimate or do not respect them fully for the work they do across the world in our interests.

I have objected to Clause 28 standing part of the Bill, and I thank the noble Lord, Lord Purvis, for his support, because, as it stands, the clause is unacceptable. The Government themselves have said in the other place and in previous debates that they are considering whether the clause needs amending and, if so, how. We all wait with bated breath to see where that has got to. The ISC has said it needs to change, and we know that even with the further closed briefings from the intelligence services to the ISC, it still believes that the clause needs amendment.

Amendment 63A in the name of the noble Lord, Lord Purvis, and Amendment 64 in the names of the noble Lords, Lord Anderson and Lord Carlile, and the noble and learned Lord, Lord Judge, are welcome and important statements of how the Government may deal with the many concerns raised in both Houses. The excellent contributions we had in support of them challenged the Government to say, if they are not the way forward, what is. The Minister’s response to these amendments will be very important and it will be interesting for all of us to know whether the Government are actually listening. Are these amendments to be accepted by the Government and, if not, why not? If they are not, can we expect a government amendment in good time for us to consider it before Report?

Questions that arise for the Minister if the Government do not accept these amendments are clear. The amendment in the name of the noble Lord, Lord Purvis, as he explained,

“would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.”

Indeed, the noble and learned Lord, Lord Hope, mentioned the issue of torture. If this is not to be accepted by the Government, can the Minister clearly and without any qualification say that none of this behaviour would ever be allowed if the clause were to be passed unamended? Remember, we are referring to murder, unlawful killing, torture or sexual offences. A clear and categoric ministerial statement, on the record, with no qualification or prevarication, would help the Committee enormously with respect to that amendment.

Amendment 64 would ensure—as I read it, and the explanatory statement confirms this—that high-level ministerial authority is fundamentally important. The noble Lord, Lord Carlile, made the excellent point that high-level ministerial authority must be maintained for the authorisation of the doing of such acts, rather than the weakening or even, as most of us believe, the exclusion of such authority, as Clause 28, as drafted, allows. Is that not the case? Why would the Government object to the maintenance of such ministerial authority, ensuring, in a democracy proud of its traditions, the importance of proper political accountability for decisions that are made? Again, this is a point that the noble Lord, Lord Carlile, and, I think, the noble Lord, Lord Anderson, made. Just as important, if not even more so, is that such ministerial authorisations would be under the supervision of the Investigatory Powers Commissioner’s Office—IPCO. This, under Clause 28, now seems not to be the case, whereas independent oversight and accountability seem to me, and I am sure to most of us in the Committee, to be an essential part of such a process.

We know the phrase in the clause as it stands,

“the proper exercise of any function”,

has also caused concern. What does it mean? Who decides whether it is proper or the breadth and potential scope of the phrase? If there is no independent oversight, as required by Amendment 64, who provides it and how? Something as sensitive and crucial as this cannot be left to a few individuals in a closed meeting in an office away from any public gaze or scrutiny. That is unacceptable in a democracy. As it stands, the clause is not acceptable and these amendments seek to improve it. As I and the noble Lord, Lord Anderson, have said, we will have to come back to this on Report, either to push an amendment or to agree or disagree a government amendment.

Very serious concerns have been raised about Clause 28 that cannot and should not be ignored by the Government. The ISC has said that the clause needs amending because it is unacceptably broad. Will the Government listen to it, if no one else? Even with the additional briefings, as I have said, it does not believe that Clause 28 is the way forward, even if it accepts that there is a problem that needs fixing.

In justifying Clause 28 as it stands, can the Minister answer some of the following questions? There are currently safeguards, such as ministerial authorisation, the reasonableness test so eloquently outlined for us by the noble and learned Lord, Lord Judge, under Section 50 of the Serious Crime Act and the fact that the DPP must be satisfied that a prosecution is in the public interest, as the noble Lord, Lord Carlile, properly reminds us time after time. I am grateful that he does so, because that point is lost; it is about not only whether a conviction can be secured but whether it is in the national or public interest for such a prosecution to be pursued. I have faith in the system. I believe that in most cases, if it is not in the public interest, it will not be pursued. That is an open decision that we can question to see whether we agree with it. Why have these safeguards been swept away with respect to such behaviour conducted abroad?

Can the Minister clarify what it means in Clause 28 for something to be necessary for the proper function of the UKIC or the Armed Forces, with no proportionality required? Why have the Government diminished the role and accountability of Ministers in the decision-making structure? As the noble Lords, Lord Purvis and Lord Beith, asked, why does Clause 28 extend this immunity to the Armed Forces? If I have read it right, the Armed Forces have protection under Section 7 of the Intelligence Services Act. Have I got that wrong? Can the Minister clarify why Clause 28, as drafted, appears to extend these immunities to the Armed Forces? As the noble Lord, Lord Purvis, asked, will he give an example of conduct that is the proper exercise of any function of the services but is currently subject to the chilling effect of the 2007 Act and would therefore now be allowed under this Bill? Why can it not be authorised under Section 7 of the Intelligence Services Act 1994 as it stands?

This is an incredibly serious debate, as we have heard from the many contributions from noble Lords. We also know that a huge cross-section of Members of Parliament in the other place expressed their concerns, many with great personal experience. Dan Jarvis MP, Kevan Jones MP, Maria Eagle MP and David Davis MP made excellent speeches asking why the change is necessary and, if it is, why we cannot have something that deals with the perceived problem and commands support, including from our parliamentary oversight committee, the ISC. The ISC was set up specifically to be allowed closed briefings, so that it could advise us on what was appropriate for these difficult matters. How on earth can the Government command the respect and support of this Chamber if the ISC, the committee we set up to have oversight on these matters, does not agree with Clause 28? Why do the Government set themselves against what the ISC is saying and then wonder why we have doubts?

The excellent House of Lords briefing highlights the many comments expressing doubts, particularly the belief that immunity from prosecution for serious crimes committed abroad would be made much more likely and possible under this clause. As Jeremy Wright MP asked, can the Minister explain the difference between acting reasonably under Section 50—the noble and learned Lord, Lord Judge, made this point—and acting in the proper exercise of a function, as this clause requires?

We are rightly proud of the work of our intelligence services and Armed Forces, but we also have a responsibility as a democracy to set a legislative framework that sets, and is seen to set, high standards. Openness, transparency and accountability are part of the price of our democracy. As drafted, Clause 28 undermines these principles and needs at the very least to be seriously amended.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have contributed to a fascinating and wide-ranging debate. If the noble Lord, Lord Coaker, is not sure where it leaves him if the noble and learned Lord, Lord Judge, is a pupil, I am under absolutely no illusions where I am left.

I turn to Clause 28, the Serious Crime Act 2007 amendment. I thank the noble Lord, Lord Coaker, for his advance notice of interest in this measure and the noble Lord, Lord Purvis, for our discussions to date on this Bill. I also very much thank the noble Lords, Lord Anderson and Lord Carlile, who provided advance notice of their intention to table this amendment and have generously shared their time and expertise with me and the team on this measure, as the critical friends to the national security world that the Committee knows them to be.

I will speak to the purpose of the SCA amendment and the amendments tabled by noble Lords. Respectively, they seek to remove the SCA amendment in Clause 28 from the Bill and replace it with an amendment to Section 7 of the Intelligence Services Act 1994, or ISA, and to add to Clause 28 to ensure that exemption from liability for individual Ministers and officials who assist or encourage crimes under the SCA would not cover torture, murder or sexual offences. However, before I come to that, it is right to express our thanks to those who work tirelessly to keep us safe, as the noble Lords, Lord Anderson and Lord Coaker, did, while recognising that we should carefully examine any changes to the law which might regulate or enable their activities.

I will briefly tell noble Lords why Clause 28 is in the Bill and why the amendment to the SCA is necessary. In essence, it is vital that we solve an unintended consequence of the SCA which currently exposes those acting for our intelligence and security agencies—MI6, MI5, GCHQ: the UK intelligence community, which I will henceforth call UKIC—and our Armed Forces to potential legal jeopardy and limits their operational agility. This can limit their ability to keep the UK safe, including through our international collaboration with trusted partners, which is vital in the modern world.

The SCA creates offences when an act is done which is capable of “encouraging or assisting” an offence and the person intends or believes their act may encourage or assist an offence. These offences are complex and were predominantly introduced to ensure the police could tackle those directing serious organised crime—for example, capturing those who knowingly directed violence or the importation of drugs but distanced themselves from criminal conduct. There is no minimum level of contribution to the offence which may be encouraged or assisted; the contribution can be small and indirect and there is no need for an offence to be ultimately committed. I will come back to the noble Lords’ amendment, but say here that these are obviously not circumstances that always lend themselves well to pre-authorisation.

Clause 28 focuses on this very specific area of criminal law which is having an operational impact to the detriment of the UK’s security. It is not a general immunity and it would not change the application of all other criminal law offences. It does not make it legal to encourage or enable torture or rendition or solicit murder and does not limit the offence of misconduct in public office. In addition, Clause 28 does not remove civil liability or change either the UK’s international law obligations or UKIC’s or the Armed Forces’ rigid adherence to these obligations. I will come back to that in a moment.

At present, UKIC and the Armed Forces are required to carefully apply the provisions of the offences, sometimes at fast pace and in critical scenarios, as has been noted, and some of which may have life or death consequences—all while they work with our international partners to help protect the UK. We are talking, for example, about sharing intelligence to combat terrorist attack plots. Delays and limits on activity arise solely due to SCA risks when otherwise seniors are clear that there is no wrongdoing and that the activity represents a proper function of the organisation. The offences in the SCA are therefore creating a “chilling effect”, as the noble Lord, Lord Coaker, referred to, across UKIC and the Armed Forces in the delivery of their mission, and impacting on their ability to keep our country safe.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I do not believe that there is immunity for that, but I will clarify that if I am incorrect.

Moving on, caution when considering the legality of support to our partners is of course correct and will continue. However, the current impact of the SCA offences means that vital intelligence-sharing opportunities have been delayed or missed, even when UKIC and the Armed Forces are fully compliant with other legal and policy requirements, such as the Fulford principles and the overseas security and justice assistance guidance, which ensure, for example, that support to international partners is in line with our human rights obligations. I have the principles and guidance to hand. If anybody would like me to go through them in detail, I will, but they are long so it will delay proceedings. I will await an intervention, if any noble Lord wishes me to do that.

UKIC’s and the Armed Forces’ adherence to and compliance with the principles are monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections, and they are also routinely scrutinised by the Intelligence and Security Committee. Ministers are directly accountable for the work of the agencies and the legality of their operations. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisations’ activities, and I commend the important work that the ISC and IPCO undertake in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. This is right and fair.

However, I have heard the views of the House about this clause. The Government are in close consultation with the Intelligence and Security Committee, UKIC and the Armed Forces, and we are carefully reflecting on the views expressed and considering whether a change in approach is appropriate. It is important to note that those who have seen the very sensitive information which is relevant to this issue have agreed that there is a problem to solve—including the ISC, which has seen specific examples—and I am committed to us reaching a consensus on this matter.

Turning directly to the amendment in the names of the noble Lords, Lord Anderson and Lord Carlile, Section 7 of the Intelligence Services Act allows the Secretary of State to give authorisations for acts outside the British Isles, provided that the acts are done as necessary for the proper function of SIS or GCHQ—though not MI5 or the Armed Forces—and that the nature and consequence of the acts will be reasonable. These authorisations are clearly not currently available in all the circumstances in which SCA risks arise. I understand that this amendment seeks to address that gap and provide a solution to the application of the SCA offences. It also seeks to utilise an existing power for ministerial authorisation which is overseen by the Investigatory Powers Commissioner. These are obviously legitimate and valuable objectives. Section 7 authorisations provide a carefully used route by which the agencies can seek ministerial approval in advance of planned activities. They require Ministers to consider, in relation to specific acts, whether they are necessary and whether the consequences are reasonable. Once authorised, they can remove criminal and civil liability for those acts.

There will invariably be instances where the SCA risk does not manifest itself initially and becomes apparent only much later. Where a risk is not identified in advance, a Section 7 authorisation would not be sought to cover it. In these cases, those acting for UKIC or the Armed Forces would not be adequately protected should concerns about SCA offences arise later. Further, this scenario could lead to an unintended consequence of seeking to use Section 7 authorisations for hypothetical risks, creating an unhealthy reality in which more conduct is approved than would be otherwise without providing meaningful consideration of those risks. I am sure the House shares our desire to find a targeted solution to that problem. It would be a perverse outcome indeed if this well-intended amendment were to lead to less consideration of the SCA risks rather than more. Whether it is a class authorisation or a targeted one, as referred to by the noble Lord, Lord Purvis, the reasons why Section 7 authorisations are inappropriate remain the same.

In short, the Government do not believe that Section 7 authorisation is the best solution to the specific operational issue and do not believe it would improve the clarity of the application of the SCA offences to all the complex operational scenarios that arise in ongoing, carefully considered but agile international collaboration. It is more desirable to remove this risk in a targeted way as per Clause 28, avoiding the burden of potentially missing, and/or the overuse of, Section 7 authorisations for SCA risks.

The noble Lords, Lord Purvis and Lord Beith, talked about criminal conduct and authorisation of this for covert human intelligence sources. I think they may have conflated this with the issue at hand. No amendment is being proposed to the criminal conduct authorisation regime which governs the action of agents. We are concerned here with support for our international partners’ activities, so I agree with the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, who articulated this point very well.

I now turn to the amendment from the noble Lord, Lord Purvis, which aims to table provisions which explicitly state that Clause 28 does not cover torture, murder or sexual offences. Again, it is a legitimate attempt to clarify Clause 28. However, it is one which the Government deem unnecessary for reasons that I have partly outlined already but will continue to set out.

[Lord Coaker (Lab)]

Coming back to the amendment from the noble Lord, Lord Purvis, gives me the opportunity to return to an earlier comment from the Minister. Did he say in answer to the question from the noble Lord that he did not think we could assist others if they were conducting operations which involved torture, et cetera—that we could not support that activity? Was he going to clarify that and write to us, or clarify it later on the Floor of this Chamber?

[Lord Sharpe of Epsom (Con)]

I am going to do it right now: there is no immunity for inciting or assisting others to kill or torture.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I thank the Committee for its indulgence in allowing a 10-minute break. The technical issue involved was entirely mine. I am tempted to say that there was a reasonable defence. It may not have been a public interest defence and I certainly cannot describe it as lawful justification, but nevertheless—

[Lord Coaker (Lab)]

A serious disruption?

[Lord Marks of Henley-on-Thames (LD)]

Yes, it was possibly a serious disruption.

We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.

It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:

“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.


It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.

It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.

Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.

The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.

We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.

In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.

I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.

I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, I have very little to add to that brilliant exposition of the difficulties with this amendment. As I said in relation to a previous amendment, I am of course very concerned with any threat to public interest journalism, and therefore I have some initial sympathy with the idea of a public interest defence. But I am afraid that, the more I looked at it and thought about it, the more I was convinced that this was not the answer. As the noble Baroness, Lady Manningham-Buller, pointed out so cogently, Article 10 is not an issue here. Article 10 has always been a qualified right. There is no violation of the convention by the absence of a public interest defence.

I am particularly concerned about proposed new subsection (2). It seems to me that what is contemplated is that, if a defendant raises some prima facie case that they disagree with government policy, or whatever their general justification is for being in breach of one of the very serious offences to which this would apply, the prosecution will have to prove that the conduct was not in the public interest. It is difficult to know how that can be done without potentially disclosing matters that, in the interests of national security, it might be most unwise to disclose. In fact, it might even result in the prosecution not going ahead because the prosecution might take the view that it would be too damaging to disclose this. That itself would not be in the public interest in appropriate cases.

I echo what the noble Lord, Lord Carlile, said. A jury would be given a complex direction in writing. I can then only anticipate—I have had this experience myself, but not in this sort of case—that the jurors, who may be bewildered by a direction such as this, would ask a series of supplementary questions. What is meant by this? How do we respond to this? What if we agree with the defendant but do not think this? Et cetera, et cetera. It is difficult to conceive of this being a very satisfactory procedure, or indeed in the public interest.

So, although I sympathise with what lies behind this, I am concerned that the Bill could be altered more satisfactorily to protect journalists and whistleblowers. I am afraid that this is not the answer.

[Lord Coaker (Lab)]

My Lords, I rise to speak primarily to my diffident amendment, which is none the less an important one. I agree with much of what the noble Lord, Lord Marks, said and what he seeks to achieve in his amendment. As he said, it is based very much on what Kevan Jones MP said on new Clause 5 in the debate in the other place.

I am going to leave to one side the notes I had written for this, because it is such an important debate and discussion. The amendment I put down was just a probing amendment to see that it was debated, but now I can see the sense of it, because in the remaining time for the Bill we will not have the opportunity for hours of debate about what a public interest defence should or should not be. But it is not going to go away.

As the noble Baroness, Lady Manningham-Buller, eloquently told us—supported by the noble Lord, Lord Faulks, and others—there is a view that a public interest defence, if you are not careful, will compromise national security in the ways that were outlined. We cannot ignore that, but neither can we ignore the fact that many respected organisations fundamentally believe that the Bill as drafted will both cause a problem with respect to those who wish to act as investigative journalists, which none of us would wish to see compromised—I know that this will be debated later on the amendment on whistleblowing from the noble Baroness, Lady Kramer —and prevent somebody who works in a service exposing serious wrongdoing. The wrongdoing going on might be so serious that, on reflection, we would be pleased that they had brought it to the public’s attention. There is a real conflict here between those two points of view.

Nobody wishes to compromise national security or to curtail the opportunity for people to reveal things which are in the public’s interest. But having put a probing amendment down, it seems that my amendment is one way to try to wrestle with this problem in slower time, while we reflect on how we bring all this together. As I say, we cannot just dismiss all the institutions and organisations, including very respected people, who want a public interest defence. They include the Law Commission and many others such as Mishcon de Reya, who have sent us all a really informative argument for why there should be a public interest defence. They have pointed to various cases, some historic and some not so historic, to give examples of where a public interest defence may have helped.

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[Lord Murray of Blidworth (Con)]

I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.

It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.

The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.

I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.

Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.

I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.

[Lord Coaker (Lab)]

I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?

[Lord Murray of Blidworth (Con)]

I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.

I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.

The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.

The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.

I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code A) Order 2022

Lord Coaker Excerpts

Tuesday 10th January 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I support broadly targeting those convicted of carrying knives, because it seems to follow the evidence we have. Repeat offenders, repeat locations and repeat victims often disproportionately contribute to the amount of crime, particularly with people who carry knives. Not everybody who is violent carries knives, but those who do repeatedly carry them, so it is not a bad idea to target them. In fact, the obverse of what is being said about without-cause stop/search is that this gives a reason to stop/search—namely, that the person has been convicted in a court of carrying a knife or being associated with somebody carrying a knife.

As the noble Lord, Lord Paddick, mentioned, the Police Federation of England and Wales objected to this proposal, or at least made some arguments counter to it. I am quite surprised by that, because the arguments it makes are also against Section 60 stop/searches. Section 60 orders are put in place in a certain area to target repeat locations and allow stop/searches to be carried out without cause. A similar dilemma is that nobody knows where these areas are until a police officer stops you and says you are in one, which has always for me been a reason why we should have better ways of communicating those areas to people who may be stopped in them. However, the principle of without-cause stop/search has been there for a long time.

I agree with the noble Lord, Lord Paddick, that this is not the answer, but I think it is part of an answer. It seems reasonable to target those who repeatedly carry knives or are likely to carry knives, having been warned by a court that they should not. They have been given an order and told not to, so it is reasonable to check whether they are keeping to that order.

I am not in a position to comment on the comments from the noble Lord, Lord Paddick, or the noble Baroness, Lady Jones, on whether a promise was made about how this power would be extended, but I imagine that one of the challenges will be with those areas adjacent to the four pilot areas—where the line is drawn on a map according to 1974 local government boundaries and often county boundaries. People who wander between villages across a county line cannot be policed on the other side of it if they have an order in place elsewhere, such as in the place where they live—let us say they are in a village just on the other side of a court boundary. It would be an odd conclusion that the adjacent forces to Sussex, West Midlands, Thames Valley and Merseyside would not be able to police these orders and that, in principle, people could wander over the border, carry a knife and not suffer the same consequences.

I agree that identification is important. Officers should be able to identify the people who have these orders. If they stop them and say, “Who are you?”, they indicate that they do not know the person has an order, but there are ways around that. Markers for ground vehicles can be put on the police national computer. Specific intelligence can be shared if people are wandering between, say, various nightclubs or areas, so that local officers know who they are. That can be managed.

My final point is that I was a little surprised by the selection of the pilot areas and that London was excluded. My experience, having policed in South Yorkshire, Merseyside and London, is that where stop/search has been a problem—and it has been—that has often been in London. Frankly, in the rest of the country, the volume is low and the problem is not of the same nature. If you talk to anybody in Merseyside or South Yorkshire, you just do not hear that this is a particular problem. I am not saying that it is not a problem, but it is not of the order that we see in London.

London has seen the sus laws of the 1960s and Section 44 of the Terrorism Act in the 1970s, 1980s and 1990s, and now Section 60 carries its own problems. When I took over in 2011, we discovered that Section 60 orders had, I am afraid, been scattered like confetti around London and something needed to be done. London’s experience of stop/search has been of stop/search without cause, but it is completely different from the rest of the country, so I wonder how much we can take from the experiments in Merseyside, West Midlands, Thames Valley and Sussex that could carry over easily to the London environment. People may not be persuaded by that. That is something the Government might want to consider as the pilots progress; if London is excluded, the evidence may not be as powerful in future.

[Lord Coaker (Lab)]

My Lords, I start by thanking the noble Lord, Lord Paddick, who made some important and interesting points. I agree with many of them and I look forward to the Minister’s response.

The Chamber will wish to know that we did not oppose the Motion for this pilot in the other place, but there are also important points that I wish to pose to the Minister to add to those made by the noble Lords, Lord Paddick, Lord Moylan and Lord Hogan-Howe, and the noble Baroness, Lady Jones. I also thank the noble Lord, Lord Paddick, in another sense, in that this also gives us in this Chamber the opportunity to discuss knife crime, which is clearly an important matter.

We are all horrified by knife crime and the horrific murders, sometimes of young people by other young people, in the most shocking of circumstances—in full public view. Can the Minister start by telling us what the latest figures actually tell us with respect to knife crime? I looked for them before this debate, and some are impacted by the pandemic or use different years as a baseline. What are the actual official figures for knife crime and knife-related murder, and not just in London but across the country? Clearly, whatever the figures are, they are too high, and the fundamental question for this debate is how serious violence reduction orders are expected to help. The noble Lord, Lord Moylan, made the point that knife crime prevention orders were backed as the answer to tackle knife crime back in 2019. They have not even started yet. Why is that, and when will they start?

On the issue of disproportionality, the pilot is for two years. However, supposing that problems emerge around disproportionality before the two years—a point the noble Baroness, Lady Jones, made—is there a mechanism for an earlier review within that two-year period to look at data as it emerges? The Minister in the other place says he is open to this. What does that mean: an interim review after, say, six months, or a year? What does the Government being “open to looking at this” mean?

Can the Minister explain the transition period of six months and how that will work in practice? In particular, how will it impact on an individual given such an order as regards its length? Are all orders for only a six-month duration or just those issued on the last day of the two-year pilot, hence the six-month transition period? It is not clear to me at all, because if you are given an SVRO on the last day of the two years, it can last only for a maximum of six months. If you are given it on the first day of the two-year period, can you be given it for two years, or two years and six months, or can you be given it for six months, then another six months and another six months? Some clarity about who can and cannot be given SVROs is needed.

On the issue of territorial extent, the SVROs will be able to be used only in the four areas—the noble Lord, Lord Hogan-Howe, made a good point about how the areas were chosen, why certain other areas were not and why the number four was alighted on, and I think the Chamber could do with some explanation of that from the Government. These four areas are the areas where the orders can be given but, as the noble Lord, Lord Paddick, mentioned, the concern is that the police power will be applied across England and Wales. How will the data be shared by these four areas with forces across the country? What about Scotland? If somebody who is subject to such an order went to Scotland, what happens with respect to that? How will a police officer be able to know that the individual is subject to an order? Again, the noble Lord, Lord Hogan- Howe, made that point, although I understand that his point was that you would expect it to be on the police database and shared in that way. However, it would be interesting to see how that will work and what the Government’s response would be.

In other debates, we have talked about stop and search, including whether only a uniformed officer can use this power; again, the noble Lord, Lord Paddick, has made this point forcefully before. With respect to this order, can only a uniformed officer use this stop and search power—particularly given that, as noble Lords will appreciate, it is stop and search that can be done without suspicion? How many officers have now received the College of Policing training on stop and search, and will they be updated with respect to this order?

On the question of pilots, can the Minister look at ensuring that, if, for whatever reason, a future pilot contains one part that is focused on a small number of areas and another part that is to be applied nationally, this is clearly explained—particularly in this case where, as the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick, have pointed out, this pilot came about as a result of a concession made by the Government because of the concerns about serious violence reduction orders raised by many noble Lords?

Can the Minister say something to inform us how this pilot will be evaluated by Ecorys? How is it going to do that? What criteria is it going to use to determine whether this pilot has been successful? Will it be fully independent of government? Also, are the Government open to the fact that these pilots may fail and not work? In those circumstances, would the Government be prepared to say that they will not carry on with them? The evaluation is particularly important given the concerns around disproportionality with respect to gender and ethnicity. If the evaluation shows that there are problems, the Government should consider other measures.

We all want to tackle knife crime, whatever its level; there is no difference between us on that. There are real issues for us as a society to deal with, as the Minister in the other place said. I want to point out one statistic that the Minister in the other place used so that noble Lords can see how difficult this is, whatever the level of knife crime. He said that

“young black people are 24 times more likely to be murdered using a knife than those from other communities.”—[Official Report, Commons, Ninth Delegated Legislation Committee, 13/12/22; col. 8.]

We all want something to be done about that. We all accept that that figure is too high. The issue for the Government is how on earth knife crime prevention orders are going to tackle that and other issues related to knife crime across the country. Can the Minister say what else the Government are doing to tackle this problem?

We have this new order alongside other orders designed to tackle knife crime and serious violence. We all hope that they work. However, as the noble Lord, Lord Paddick, and others pointed out, targeting hot spots, having police on the streets in neighbourhoods, prevention, community engagement and support are also crucial. Many lives, often very young ones, are still being lost. Many families are still affected. Many communities are still affected. Orders such as this one may help, but they must be part of a wider ongoing effort by the police and communities if they are to have the impact that we all want.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to all noble Lords who have made valuable contributions to this debate.

First, I will address the concerns expressed by the noble Lord, Lord Paddick, in relation to the territorial extent of the SVRO pilot. I want to clarify that, as I said earlier, SVROs are being introduced on the basis of a pilot in Merseyside, West Midlands, Sussex and Thames Valley police forces. They will be issued only in these four pilot police force areas. However, as the revised PACE Code A sets out, the stop and search powers are enforceable by all constables across England and Wales; the “all constables” point answers the question of whether they will be in uniform, I think, but obviously they would have to identify themselves as such. This is aimed at supporting an operational response across police force areas, allowing constables from non-pilot forces to stop and search individuals subject to SVROs if they travel outside of the pilot area.

The noble Lords, Lord Hogan-Howe and Lord Coaker, asked why we are piloting in those force areas and not with larger forces, where the prevalence of serious violence—

[Lord Coaker (Lab)]

I am sorry to interrupt; I apologise to the Minister for being rude. I am not clear what he means about whether or not an officer using this stop and search power must be in uniform. This is an extremely important point. I am sorry if it is just me and I did not understand, but I wonder whether the Minister can clarify that point.

Police: Employment and Discipline

Lord Coaker Excerpts

Monday 9th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know the answer to that; I will have to write to my noble friend.

[Lord Coaker (Lab)]

My Lords, the Minister will know that the majority of our police officers do a great job, often in the most difficult circumstances. However, we have seen a number of high-profile cases that have undermined the public’s trust and confidence in our police—cases such as that of Sarah Everard or even of the head of the police watchdog himself having to resign over historic allegations. Is not the question for the Government: what are they going to do to work with the police to restore the necessary public trust and confidence in our police?

[Lord Sharpe of Epsom (Con)]

I join the noble Lord in agreeing that we owe our police officers—the vast majority of whom do an excellent job—our thanks and praise. He will also be aware that there have been a number of reports published on these subjects. The police forces will be coming back imminently with their responses to the HMICFRS report, to which I referred earlier. As I said, I think the report specified that it will be within 56 days. It is absolutely incumbent on the Government to work with all police forces to ensure that they deliver the highest possible standards.