National Security Bill

Lord Craig of Radley Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, when I was a squadron leader, I signed the Official Secrets Act. I still have my copy of the form that I signed. We were required to sign, though the reasons given were limited —do not lose or pass on any classified or official information and in general abide by the restrictions of the Official Secrets Act. Signing had no effect on what behaviour was deemed to be legal, because the Act is a law, not a contract, and individuals are bound by it regardless of whether they have signed. Signing was intended as a reminder to the person that they are under such obligations. MoD Form 134 is still available to be signed and sets out the reasons for doing so, although I am not aware of any statutory instruction to sign.

A so-called minor amendment in Schedule 16 to this Bill is that the 1911, 1920 and 1939 Official Secrets Acts are to be repealed. That seems rather more than minor, though of course, OSA 1989 still stands. Will members of the Armed Forces and other Crown servants in future be required to sign the new national security Act? A bigger question for the Government has been mentioned already. If this new national security legislation is replacing the other three, then why is the legislative opportunity also to bring OSA 1989 into one updated Act not being taken?

The Law Commission found that all four existing Acts were outdated—or inadequate for dealing with new technologies—and in need of revision. However, this Bill is nearly 200 pages long, and deals with topics ranging from very major national security issues to the responsibilities in Clause 9 of a constable at the site of a military aircraft accident. I can see that the Government find themselves between a rock and a hard place. New legislation is urgently required to embrace evolving threats, but dovetailing the 1989 Act into this mammoth Bill is beyond any reasonable ask. Therefore, although much was made of the missed legislative opportunity in speeches in the other place, I accept that the current broad approach is right.

I mentioned Clause 9 a moment ago, which refers to when a constable may have to set up an exclusion zone around an aircraft accident. For the avoidance of doubt, I presume that “aircraft” covers manned and unmanned aerial vehicles. It seems that the constable might have powers under this legislation to move or remove the aircraft or parts, but I hope that the essential needs of the accident investigation authorities will ensure that critical evidence of the causes of a crash will not be tampered with or lost by some inadvertent action of the constable.

Also, why is this confined to aircraft? What about one of His Majesty’s ships or submarines that unfortunately finds itself beached on some shoreline? Surely one of these, too, might require an exclusion zone which, by its nature, would not be covered by a previously declared regulation under Clause 8 for any vehicle.

Clause 30, referring to the Republic of Ireland as not being a foreign power, intrigued me. I declare a lasting interest in things Irish: I was born and brought up in Dublin. There are of course many special arrangements agreed between the UK and the Republic, and the Explanatory Notes say that it is because a political party may be active in both. I doubt that it excludes espionage. It also raises this thought, perhaps theoretical at present: were green parties to grow into positions of government influence, would that be a reason for labelling a country with a strong green party as not a foreign country for the purposes in this legislation?

There is also the apparent anomaly that, although Gibraltar gets specifically excluded in Clause 95, which relates to the Clause 20 amendment of Section 238 of the Armed Forces Act 2006, it gets no mention in Clause 7, which lists the UK and the SBAs—sovereign base areas—in Cyprus. How then might monitoring of illegal intelligence behaviour and prohibited places be covered in, say, Gibraltar, the Falklands, or other overseas or dependent territories? Indirectly, this clause indicates that, at present, we do not have special intelligence facilities, other than in Cyprus, elsewhere overseas.

Finally, I found difficulty in discerning the meaning of this sentence in Clause 20, which amends Section 238 of Armed Forces Act 2006. It says that

“the reference in subsection (1)(b) to an offence which is not an offence listed in subsection (2) is to be taken as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is not an offence”.

Perhaps the Minister or an official could transcribe this into less legal English for one to more easily comprehend its meaning.