National Security Bill

Lord Faulks Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I will add a few remarks to what has already been said in the debate. My noble friend Lord Black comprehensively and powerfully set out the case for his amendment, which I support and have added my name to.

I emphasise that, like everyone else, I think, I support the Bill. It may be of interest to noble Lords to know that I signed the Official Secrets Act when I was just 18 years old, on my first day as a junior secretary in the Ministry of Defence. I knew very little about the world that I had entered, but it was impressed upon me from the start that I would be in possession of information that could endanger lives. I learned from an early age about protecting any information that could be weaponised against the UK or our citizens.

I also learned that part of what makes us such a powerful and important nation is our freedoms, especially our free press. I learned that it is critical that we do not do anything that risks journalists not being able legitimately to expose serious failings or wrongdoing by government or public servants, especially when those government failings themselves could threaten the lives and well-being of British citizens.

In Committee, we heard some powerful examples that could be at risk of being exposed in the future, for the reasons that were set out. That is why I believe it is essential that we do not legislate to protect our national security in a way that could stop journalists doing their legitimate job, however inconvenient to Ministers or public servants the results of this sometimes are. Journalists should not be threatened with prison for exposing the truth about ineptitude, incompetence or corruption within government, whoever is in power.

I echo what my noble friend Lord Black and the noble Lord, Lord Marks, said about the commitment of my noble friend the Minister, his ministerial colleagues and officials across Whitehall, who have given time and effort in trying to find a way forward. As the Minister laid out, the Government have come a long way towards addressing the concerns expressed during debates in Committee. Like others, I support all of the amendments that my noble friend tabled on behalf of the Government.

However, as my noble friend Lord Black explained, we need to go a little further and provide greater clarity than the Government’s amendments if we are to avoid a chilling effect on journalism, which could so undermine the public interest. That said, I fear that my noble friend the Minister may be unwilling to accept our amendment. That troubles me, because a Bill on national security and how a new offence could apply to journalism is not one on which I would like to see the House divided.

I can see why the Government might be struggling with the amendment or to come up with something else that provides the clarity that we need. As unthinkable and unlikely as it may be, I suspect that there is a fear within Whitehall that a journalist working for a recognised news publisher could collude with a foreign state seeking to do us harm and use this as a defence to get away with it.

I say to the noble Baroness, Lady Jones, that I want to listen to what my noble friend the Minister says at the end of the debate. It is important that we give him the opportunity to speak very clearly about this. I remind my noble friend that his words at the Dispatch Box are incredibly powerful in legal terms if they are made deliberately with the purpose of ensuring that there is complete clarity and no ambiguity when it comes to the intention of legislation.

If he will not accept this amendment, I want him to be very clear about the explicit limits of this offence. Can he put beyond any doubt that no journalist doing a legitimate job of exposing wrongdoing and failure by the state will be caught by this future Act of Parliament —if that is what it becomes—if they are not working on behalf of a foreign Government or agency? As I said, I want to listen to him, and I urge the noble Baroness, Lady Jones, my noble friend Lord Black and the rest of the House to do the same, because that is what I will do.

[Lord Faulks (Non-Afl)]

My Lords, I declare my interest as the chairman of the Independent Press Standards Organisation. I have also added my name to Amendment 18. I have very little to add to what has already been said by those who have spoken in the debate. The noble Baroness, Lady Stowell, has given a very good summary of the ruling of Pepper v Hart, although there first has to be ambiguity for the Minister’s words to have particular effect. None the less, I entirely agree with her that we will listen with great interest, as indeed will the media in general, to what the Minister has to say, to see whether he can give the assurance that is genuinely needed.

All I will add to what noble Lords have said already is that public interest journalism is genuinely under threat. It is very expensive to undertake, and editors can easily be deterred by the possibility of a wild goose chase. It would be an additional impediment to their encouraging proper journalism if they felt that one of their journalists or their publication was in some danger of finding themselves contravening the provisions of this very important Bill, which I also support in all respects. That is why this is a very significant group of amendments. As the noble Lord, Lord Black, said, citing Roosevelt, freedom of expression is fundamental. The press and the recognised publishers reflected in this amendment represent a very significant part of that freedom, and I hope that, in the Minister’s response to this group of amendments, we will get the reassurance that is so badly needed.

[Lord Purvis of Tweed (LD)]

My Lords, I have added my name in support of my noble friend’s amendments seeking further clarity on

“the interests of the United Kingdom”.

I remind the House of the very significant penalties that are associated with these offences. Since this is my first opportunity on Report, after speaking in Committee, I thank the Minister and his team for listening, and not just listening but acting, engaging with us on these Benches and bringing forward amendments that we believe will make the Bill fundamentally better. Ministers have been true to their word in acting, and I appreciate that. The way the Minister and his officials have conducted themselves is to be commended, and I put that on the record so that it is perfectly clear.

The area that is outstanding, however, as my noble friend indicated, is that we still retain a concern that simply referring to “interests” and relying purely on the judgment within the 1964 Chandler case is insufficiently wide. As I stated in Committee, I am in a significant minority in not being a lawyer but, from reading the judgment in Chandler, which I remind the House also related to nuclear and defence policy, the only reference the Government have given to highlight what the case law definition would be of

“the interests of the United Kingdom”

is a defence and security interest. That is the only reference to the only case the Government have referred to. Therefore, it is not a significant leap to simply state in the Bill that this legislation is linked to security and defence interests. Without that, as my noble friend indicated, there is a concern that any government policy of the day that is not associated with defence interests, but is nevertheless activity that is directed by a foreign power, could be covered within this. Therefore, we still believe that there is a case for that to be defined.

I hope the Minister will respond to that point and say whether the Government are open to having further clarification of how “interests” are going to be defined, rather than just relying on that individual case. The reason I believe that that will now be necessary is because of one of the welcome concessions by the Government, which is to have an independent reviewer. We will come to government Amendment 85 later, but there will be a reviewer of this part of the legislation. For that reviewer to do their job properly—and we have noted reviewers and former reviewers in the House today—clarity on the Government’s intent regarding these interests will be important for the reviewer to look at the proper functioning of the legislation. I hope there will not be a grey area where there needs to be clarity, as the noble Lord, Lord Faulks, indicated.

My second point is that I welcome the Government seeking to narrow the area of information known to someone who is likely to fall foul of this legislation. Journalism is incredibly important. Unlike the noble Baroness, Lady Jones, I do not have friends at the Telegraph or the Sun to message me—we on these Benches do not often receive friendly messages from those journals—but I defer to her contacts with the Sun. Of course, she raises an important point in the context of what we debated last week in Grand Committee, the situation in Iran. We know that not only, as the noble Lord, Lord Faulks, indicated, is free, fair, impartial and independent journalism under threat around the world, but journalism is under threat in this country. There are countries that are persecuting journalists for operating within this country; therefore, the strongest defences for journalism are important. We believe very strongly that my noble friend’s Amendment 79, on a public interest defence, will provide a very sound defence for journalists carrying out their activities.

I have a question for the noble Lord, Lord Black. My understanding of the way that his Amendment 18 is written is that it would also cover whistleblowers. We have made the case for there to be protection for whistleblowers but, as I read his amendment, the defence is for a person who is not necessarily a journalist, but the intent is that the action will be for

“publication of material by a recognised news publisher”.

As I read it, Amendment 18 is therefore not limited to journalists. There may be unintended consequences that we may consider positive but the Government may not. I do not know whether the noble Lord, Lord Black, will an opportunity to respond, so I ask the Minister whether his interpretation of Amendment 18 is that it could include whistleblowers. The main result may be to protect those who have a public interest defence in operating within all these parts. We will debate this in the next group on Amendment 79. I hope that will be our opportunity to draw the ditch—if not die in it—fight our case and divide the House on ensuring that there is a defence for journalists and a proper public interest defence for those carrying out legitimate activities not to be captured by this Bill.

Public Order Bill

Lord Faulks Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Coaker (Lab)]

That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.

Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.

[Lord Faulks (Non-Afl)]

I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?

[Lord Coaker (Lab)]

Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.

Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.

The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that

“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—

he emphasised that last phrase—

“the individuals or the organisation from carrying out their daily activities.”

Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.

I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:

“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”


I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.

Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.

[Lord Anderson of Ipswich (CB)]

My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.

I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.

The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.

The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law

“so as to maximise the space for protest”.

I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.

My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, in the temporary absence of the noble and learned Lord, Lord Hope, from the Chamber, I speak to the amendments in his name, to which my name and that of the noble Lord the Minister have also been added.

The Constitution Committee, in its report published on 11 November 2022, considered the question of “reasonable excuse”—which is used, as has already been pointed out, in a number of contexts in this part of the Bill—and pointed out that it was not defined. It also said, at paragraph 14 of its report, that the offence does already

“require intent, which may render redundant the need for a ‘reasonable excuse’”.

The committee considered it unsatisfactory to leave to the court the task of determining what might be a “reasonable excuse” without Parliament indicating what it intends the defence to cover. Including a “reasonable excuse” defence invites arguments as to whether certain, but not other, political motivations might constitute an excuse. What the committee recommended was that that,

“unless a precise definition of ‘reasonable excuse’ is provided then the ‘reasonable excuse’ defence”

should be

“removed from Clauses 1, 3, 4 and 7”—

apart from anything else, in the interest of legal certainty.

This was a report from a committee looking at the constitutional aspects of the Bill. It included, as the House will know, Peers from all parties and none. I confess to some uncertainty as to what the Government can have intended by originally including a defence of “reasonable excuse”. If you cause serious disruption by attaching yourself to an object or land or otherwise locking on, as defined in the Bill, and you do so intentionally or recklessly, what could provide a “reasonable excuse” for doing so?

It seems to me that probably the only excuse that could be offered would be that your cause is a noble one: in particular, that you are concerned about the damage to the planet caused by climate change. I see the noble Lord, Lord Deben, taking a close interest in this debate, but I am not suggesting for a moment that he would be inclined to lock himself on—but that has been the stance taken by Extinction Rebellion and Just Stop Oil, as we know. It could be argued that any demonstration, however serious the disruption, is justifiable if it contributes in some way to putting extra pressure on the Government to take appropriate steps to, if not completely turn back climate change, at least substantially reduce its effect.

I suspect that “reasonable excuse” was put in the Bill in an attempt to ensure that the Bill then complied with the Human Rights Act: in particular, that it did not contain provisions that, in the light of the Supreme Court’s decision on Ziegler, might be said to be in breach of a demonstrator’s convention rights. The Ziegler decision has been controversial. Policy Exchange, in particular, in a number of publications has pointed out the flaws in the judgment, or at least the flaws in how the judgment has been interpreted.

Since the Supreme Court decision on Ziegler, there have been other cases which seemed significantly to water down its effect—the case of Cuciurean and the Colston statue case. However, the recent decision in the Northern Ireland abortion case, handed down in on 7 December 2022—after the Bill had progressed a long way in your Lordships’ House—has made it perfectly clear that Ziegler needs to be very substantially qualified. The ingredients of an offence can themselves ensure that it will be compatible with convention rights even if it does not include a defence of reasonable or lawful excuse.

It would be perfectly convention-compliant, in my view, to remove the defence of reasonable or lawful excuse altogether. I have to say that was my original preference, but I have been persuaded that it is better to retain the defence giving the possibility of a reasonable excuse that is restricted in the way the amendment allows. It would not be enough to say in relation to the offence that there is a worthwhile cause, such as combating climate change, and then to say that that is a reasonable excuse and have us ask a fact-finding tribunal, whether it be magistrates or even a jury, to give its views as to whether a reasonable excuse exists in the circumstances.

On the analysis of the relevant jurisprudence, the Supreme Court in the Northern Ireland case referred, among other cases, to the well-known animal defenders case decided in 2013. That case, and the European Court of Human Rights case law, shows that the state is granted a margin of appreciation in these areas. It would be a question of law rather than fact whether an offence sufficiently reflects the principle of proportionality. The prosecution will have to establish a serious disruption. It will also need to establish intention or, at least, recklessness. It seems entirely consistent with the Northern Ireland case that there is no need, as a matter of law, to provide for the free-ranging and imprecise defence of reasonable excuse.

The right to protest is extremely important. It is reflected in the ECHR, just as it was in the common law before the Human Rights Act was enacted, but this right should be balanced with the right of our citizens to go about their everyday life without interference. Inconvenience is something we should be prepared to put up with but where there is serious disruption involved, defined as the amendment which succeeded in the previous debate says, it should not be an answer for a defendant to say: my cause is so important that it trumps your right to go to hospital, to take your children to school or to go to work. This amendment is consistent with the law and with what the vast majority of the population would want.

[Lord Skidelsky (CB)]

My Lords, I support the amendments in the names of the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Brown. They would require the police to prove that a person charged with an offence lacked reasonable excuse, rather than the person charged to prove that they had a reasonable excuse. In other words, they restore the presumption of innocence rather than guilt.

The presumption of innocence is not just an archaic legal point. The intricate legal arguments are worthy of great respect but I do not think they get to the heart of the matter. Presumption of innocence is a cardinal principle of a liberal society—a cardinal political principle. Governments and law-enforcement agencies are always disposed to believe that their citizens are potential lawbreakers, I am afraid, so placing the burden of proof on the police is an essential safeguard for civil liberties. That seems to me the crucial point because unless that cardinal political principle is there, you are reducing the extent to which the police are answerable to the courts—and lawyers should be very interested in that point. You are reducing their accountability to the courts and that is why, in systems such as those in Russia and China, there is very rarely an acquittal because the presumption is that the person charged with an offence is guilty. The bias is then all in favour of the conviction rather than the acquittal. It is on the basis that this group of amendments embodies a fundamental political principle that I support it.

--- Later in debate ---

Moved by

[Lord Faulks]

8: Clause 1, page 1, line 18, at end insert—
“(2A) The fact that the person did the act mentioned in paragraph (a) of subsection (1) as part of or in furtherance of a protest on an issue of current debate will not constitute a reasonable excuse for doing that act.”Member’s explanatory statement
This amendment seeks to limit the scope of the reasonable excuse defence, as the ingredients of the offence themselves ensure consistent with case law that its interference with a protester’s Convention rights is proportionate.

[Lord Faulks (Non-Afl)]

The House has heard the debate, and I am not going to repeat the arguments, which have been well set out. I suggest that it is clear as a matter of law that this is a perfectly sensible and legal amendment to the Bill that would provide clarity. The alternative approach is that the police somehow have to assess the absence of reasonable excuse. It is a difficult balance to achieve; what the amendment does is strike a balance between the undoubted and important right to protest and the right of people to go about their everyday life. I commend this amendment to the House, and I wish to test the opinion of the House.

National Security Bill

Lord Faulks Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I share the view that I think is being proposed, at least implicitly, by those who tabled the amendment that nobody should be prosecuted if a prosecution would be contrary to the public interest. Indeed, I share the view that nobody should be prosecuted if their belief, however unreasonable, was that something was in the public interest. I would hate to see a wholly unreasonable person prosecuted for something that they believed was in the national interest if, for example, they suffered from a psychiatric condition that made their belief totally irrational.

I have to say that I believe that this clause does not achieve the purpose which it is purported to achieve. The noble Lord who opened this debate did say—I recognise this—that he is not claiming this is a perfect clause, but I suggest that, if we are to have a clause anything like this, it needs an awful lot of work done on it. As drawn, subsection (3) in effect means that a jury would have to decide, in part at least, whether what the defendant had done was or was not in the public interest and then go on to decide whether the belief that they had that it was in the public interest was reasonable. I think it is very difficult to draft a credible and usable clause that achieves the end that is aimed for.

Indeed, my belief is that the target of this amendment is wrong. The target should be that people are not prosecuted for offences that should not be offences. We should try to remove from this Bill those parts which tend to criminalise, for example, journalists, rather than using a clause of dubious validity and coherence such as this.

There are criminal charges, mostly regulatory offences and often strict liability offences, in which there is a defence of reasonable excuse. A defendant can raise the evidential burden that they had a reasonable excuse for certain activities, and the prosecution then has to disprove the claim of reasonable excuse. There are torts, for example in defamation, where a public interest defence is specifically provided for, and that has been heavily litigated, including a very important judgment that was given by my noble and learned friend Lord Hope in one relatively recent case.

However, so far as I am aware—and I am sure I will be corrected if I am wrong—I do not know of a criminal offence where a jury has to decide what was in the public interest, and I would urge those who believe that this is something that could be placed before a jury to have sympathy with the courts that would have to deal with this provision, because judges in every case have the very important responsibility of summing up the law to the jury, and they would have to describe to the jury a reasonable definition of the public interest. That would have to be done, under current practice, by judges in writing, handing a document, a route to verdict, to the jury—and I apprehend that this provision would create impossible difficulty.

I return with an apology to something that I said in an earlier debate this evening about the public interest. Subsection (3) actually does set out tests which I imagine are habitually applied by the Director of Public Prosecutions if he—it is he at the moment—is determining whether it is in the public interest for a prosecution to take place. That is the right location for this decision to lie. What is set out here is the responsibility of the Director of Public Prosecutions. I apprehend that, in the sort of case that those tabling this amendment have in mind, it would be extremely rare for the DPP to decide that it was in the public interest for a prosecution to take place. That is not the role of the jury, and in my view it would be a serious mistake to make the judgment of the public interest the role of a jury.

[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.

--- Later in debate ---

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

My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.

There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.

I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.

If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase

“necessary in a democratic society”.

Everything else is subject to that in the qualification.

[Lord Faulks (Non-Afl)]

Just so that I understand, is the noble Lord saying that the absence of a public interest defence, whether framed in the manner of this amendment or in a similar or a different way, means that the Bill would automatically be a violation of Article 10 of the European convention?

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

As drafted, I fear that it would. Since we have had absolutely no indication that concessions will be made to all the amendments we discussed last week—I rather doubt that we will get them—it seems to me that investigative journalism will be seriously affected in a way that risks being a serious breach of Article 10. It might be saved by the qualification suggested by the noble Baroness, Lady Manningham-Buller, but I do not accept that that case is made out.

I entirely accept the noble Baroness’s point that the damage of publication cannot be recalled, but a balance must be struck which takes into account the interest in disclosure against the interest in secrecy. We emphasise the importance not just of free investigative journalism in a democratic society but of the control of wrongdoing. For my part, I cannot see anything in what the Minister said which comprehensively puts paid to the idea that there could be a cover-up of wrongdoing not possible for citizens to redress by disclosure without being subject to criminal proceedings under this Bill.

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

I accept entirely that this is a very difficult issue and that the balance to be struck is very difficult. The noble Lord, Lord Coaker, mentioned the case of Clive Ponting, where there was undoubtedly government misinformation and wrongdoing. Clive Ponting was not a journalist; he was a former civil servant. In fact, he wrote books as well, including one on the truth about the “Belgrano”. Nevertheless, what he did was important. It is vital to our democracy that juries have the right—as one did in that case against the direction of the judge, because there was not a public interest defence—to say, “No, we will not convict because there has been wrongdoing.” A jury should not have to defy a judge and misapply the law because of the absence of such a defence to avoid covering up wrongdoing.

Of course I accept the point about drafting from the noble Lord, Lord Carlile, and that this amendment is not perfect. Indeed, it was he brought up the Ponting case at the very first instance in these proceedings. However, as the noble Lord, Lord Coaker, said, we cannot run away from drafting a public interest defence, if that is necessary, because the drafting is difficult. It is a different topic, but in Section 4 of the Defamation Act 2013 we have a defence of reasonable comment on a matter of public interest. I was on the pre-legislative scrutiny committee for that Act, and we considered very carefully how that would work. However, at that stage—although they are rarer now as a result of that Act—these were matters for determination by a jury, and a jury can determine such a public interest defence.

[Lord Faulks (Non-Afl)]

First, with great respect, jury trial was effectively abolished by the Act that the noble Lord is talking about. Secondly, it put into statutory form a so-called Reynolds defence in a civil claim. Here we are talking about prosecutions of criminal offences of the most serious sort. The analogy is not appropriate.

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

I disagree—a fortiori, if such a defence is appropriate in a defence to a civil claim, it is appropriate in a defence to criminal proceedings that carry maxima of 14 years and life imprisonment. We may differ on that; nevertheless, of course I note that jury trial was abolished for defamation by that legislation. However, when we were considering the public interest defence, the abolition of jury trial was not then in mind; we had always had jury trials, and still can do in rare cases.

The only other point I wish to make is in answer to the noble Baroness, Lady Manningham-Buller. Of course, in the case of whistleblowers, there are other avenues to pursue for those employed by the security services, but there are two answers to that point. The first is that we are not just concerned with those employed by the security services, or those employed by anybody in particular. We are concerned with offences designed to be used and prosecuted against ordinary citizens. Secondly, we have included in our amendment—it is one of the best drafted parts—that one of the factors to be taken into account would be

“the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised”.

That will always be an important point, because it answers the point that you could have gone to an authorised body for the protection of whistleblowers.

This issue is not going to go away. I suspect we shall come back to it on Report, and that there will be a vote on it. The amendment may be in a very different form, but nevertheless, with these very serious criminal offences, I cannot accept that a public interest defence is not in the interests of the public and the nation. I beg leave to withdraw the amendment.

National Security Bill

Lord Faulks Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

I think that this is too complicated and far too bureaucratic, and we need to think carefully how we tighten and narrow it, in order to win and hold public consent and produce an Act which will last for 10 to 20 years, and not just until the next Government come in.

[Lord Faulks (Non-Afl)]

My Lords, I will not be disclosing quite as much as the noble Lord, Lord Wallace, did, but I will disclose that I am the chairman of the Independent Press Standards Organisation, and it is in that context that I want to add a few remarks. I am also grateful to the noble Baroness, Lady Jones, for her amendment giving those of us who are concerned—I am sure that I speak for the whole Committee—about the potential effect, no doubt unintended, that the Bill might have on press freedom. I do not want to rehearse all that has been very well set out by the noble Lord, Lord Black, and the noble Baroness, Lady Stowell. What is vital, of course, is to think what potential chilling effect this might have on journalism, particularly public interest journalism.

One point that is perhaps worth emphasising is how expensive public interest journalism is, how heavy it is on resources and how easy it is for editors to say: “Look, this is far too difficult; you may not get what you want, it is expensive, and what is more it may be unlawful.” If you look at Clause 3(2) of the Bill, and are thinking about running a story to do with armaments, as the noble Baroness, Lady Stowell, said—I think that she was probably referring to the Snatch Land Rover issue; she confirms that that was the case—then you might well say to yourself that this is highly risky, because we are going to run a story about something which would be of interest to a foreign power with which we might be in conflict. It is just that sort of thing which this, in the absence of some sort of tailored amendment to the Bill, would have the unintended consequence of not just putting a journalist at risk but of somebody simply saying that they are not going to do the story or spend money on this.

So I hope that the Minister, who is otherwise preoccupied at the moment, may be able to consider these matters carefully, knowing how important public interest journalism is. I should say that I received some briefing from the Guardian. Although IPSO regulates 97% of those publications that we receive, it does not regulate the Guardian, so this does not in any way influence the job that I have.

[Lord Pannick (CB)]

My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.

One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is

“other assistance provided by a foreign power”.

That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.

The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is

“a governing political party of the government of the Republic of Ireland”.

I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.

None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?

National Security Bill

Lord Faulks Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, this is a very important group of amendments which in many ways goes to the heart of much of the debate that will take place on a number of amendments. It reminds the Committee that the heart of the issue is Clause 1(1)(b), which says that to commit an offence

“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.

Fundamental to that is that what we are discussing here, as the noble Lord, Lord Marks, ably set out, is what we actually mean by the interests and safety of the United Kingdom. It is to the great credit of our country that we can debate that here to try to decide what it should be.

I agree with the majority of noble Lords who have said that it is important that we try to understand how to make sure that defending the interests and safety of our country is about national security and defence. The noble Lord, Lord Evans, reminded us that there are grey areas in that respect. That is not a criticism of having the debate, but it means that we have to decide where we want to draw the line. I have mentioned this to the noble and learned Lord Hope, and I pray him in aid. He mentioned it with respect to the Public Order Bill, and again with this one. It is an abrogation of this Parliament’s responsibility if it does not seek to answer these difficult questions and just leaves it to the courts, saying that it is for the courts to decide and determine. We ourselves should try to give greater clarity to what we as legislators think that phrase actually means.

It is incumbent on the Government to say what they will do to try to define this, as Amendment 2 moved by the noble Lord, Lord Marks, and my Amendment 3 seek to do. Either they should say “We don’t need to do that”, lay out why it is not necessary for Parliament to determine it and why they think we should leave it to the courts, or say how we will get some sort of definition that makes sense and gives greater clarity. To be frank, that is a real problem for the Bill.

As the noble Lord, Lord Purvis, pointed out in his interesting and incisive remarks, along with other noble Lords, the Government say at paragraph 62 of the Explanatory Notes:

“The term safety or interests of the UK is not defined”.


They have already made up their mind that they do not need to define it. The basis of these amendments is that we think they do. We do not oppose the Bill or think it is not important that we protect the safety and interests of the United Kingdom, but somewhere along the line our Parliament should try to say what that means. The Government say in the Explanatory Notes that it is not defined and, as the noble Lord, Lord Purvis, mentioned,

“case-law has interpreted it as meaning, in summary, the objects of state policy determined by the Crown on the advice of Ministers (see the Court’s view in Chandler v Director Public Prosecutions (1964)”.

I remind noble Lords that in that judgment, the House of Lords—constitutional arrangements were different then—essentially rejected the idea that it was for a jury to determine or decide whether something was in the interests of the state. As Lord Pearce’s judgment stated,

“the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the opinion of a jury, to be.”

I am not a lawyer—I have been a politician all my life—but I would argue with that. It may be quite correct from a legal point of view, but sometimes Parliament has not caught up with public opinion or where people are. Often, juries are an important way of determining what the public think, and they work.

We have seen recent examples of that. The noble Baroness, Lady Jones, reminded us well of all the different issues that have arisen with protests. They are irrelevant to the Bill, but let me give another example: assisted dying. Time and again, juries have refused to convict on assisted dying, because they will not convict somebody in those terrible circumstances and do not believe that Parliament has caught up with the reality of where we are.

[Lord Faulks (Non-Afl)]

I entirely understand why the noble Lord is concerned about any uncertainty in these provisions, given the significant penalty, but is he at all reassured by the fact that it would be necessary for a jury to be satisfied beyond reasonable doubt that a defendant knew or ought reasonably to have known? That is quite a high threshold to be crossed before you even get on to this definition.

[Lord Coaker (Lab)]

I agree; I am just making the point that a definition would also help and give us certainty and clarity. It is important for a Bill that seeks to address issues of national security that it seeks to define that. The debate has already taken place in Parliament; the noble Lord takes the view that it is unnecessary, but I think a definition would be helpful. A number of noble Lords have said that, in the Bill as drafted, it appears that not only national security or defence issues will fall under the Bill but a whole range of other potential offences which have nothing to do with national security or the defence of the realm.

That is the clarity we seek, and it is right to explore it in Committee. It will be interesting to hear what the Minister says as to why my amendment or those of the noble Lords, Lord Marks and Lord Purvis, are unnecessary. Maybe he will use the argument the noble Lord put forward to say that that is what makes it unnecessary—

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, I had two points to make, the first of which, about foreign power, has just been made by the noble Lord, Lord Macdonald, so I will not repeat it. The second is more of a question. The noble Baroness, Lady Ludford, asked, “Why not charge theft?” I have no doubt that I will be advised by the Minister, but is there not a requirement that you have to deprive somebody permanently of something to constitute the offence of theft? I can see some potential argument that somebody charged under that offence would say that they had no intention to deprive that person permanently of that information.

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

My Lords, I have not yet spoken to Amendments 9 and 10, which I was proposing to do before my noble friend spoke for us. Before doing so, I join my noble friend Lady Ludford in opposing the protection of all trade secrets without any requirement for there to be prejudice to the interests of the United Kingdom. That amendment, which has been proposed on behalf of the JCHR, seems to me to be sensible. I also share her bemusement, and that of others, that trade secrets are included in the Bill, because the way in which they are included is extremely wide.

The noble Lord, Lord Pannick, has pointed out that Clause 2(2)(b)—he read it aloud, but I will not repeat doing so—is so wide that it effectively covers any information which has any commercial value of any significance. Of course, that information is important, and, to that extent, I accept the points made by the noble Lord, Lord Carlile. However, state actors may also steal, or act nefariously in respect of, trade secrets—as may others, be they state actors or not. They may be from the United Kingdom or abroad. They may be connected to national security, but if the Bill will deal with trade secrets, they need to be defined in such a way that it is confined to trade secrets that present a threat to national security. The Bill goes far too wide if we include wide threats to trade secrets in the criminal proceedings—which, as my noble friend Lady Ludford said, carry very heavy sentences—without the need to prove the threat to national security as an element of the criminal offence. As the noble Lord, Lord Pannick, said, threats to trade secrets are normally dealt with in the civil courts, where the protection to intellectual property is customarily and very frequently dealt with every day.

It is absolutely right, as the noble Lord, Lord Macdonald of River Glaven, pointed out, that there is a requirement that the foreign power condition must be met. However, the foreign power condition in Clause 29 is not a very difficult hurdle to surmount. The present drafting does not require any prejudice to the security, defence or other interests of the United Kingdom. It is met if conduct is carried out not by a state Government but by any entity controlled or financially assisted by a foreign power—so that could be a commercial organisation that happened to be state-controlled. For “foreign power”, we have to read that as any power or any other state, including any friendly Government from anywhere in the world.

Our Amendments 9 and 10 tighten up the wording on trade secrets in Clause 2, but only in a limited way: by requiring that a trade secret must be subject to measures to prevent it becoming generally known or available to rival experts in the field. We suggest that it is simply not satisfactory—

Public Order Bill

Lord Faulks Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the speech from the noble Baroness, Lady Boycott, really was excellent, and I hope it gets a wide hearing beyond this place and the numbers here.

When I have discussed this, I always hear the argument from people who are opposed to Just Stop Oil that the people we are talking about are not real journalists. There is something about the concentration on Charlotte Lynch from LBC that somehow says that the other people who were arrested on the same day did not really count, and I want to address that briefly.

There is no doubt that, when the protests that we are seeing at the moment are so performative, activists may well film what is going on, often because they want records of what they are doing to put out on social media. It is tempting, therefore, to treat them differently from journalists. However, I would urge against that and have argued against that. In the end, who decides who is the journalist and who is not? As the noble Baroness, Lady Boycott, said, the whole act of bearing witness and truth has nothing to do with views on the protest. Whether you are enthusiastic about the protest or hostile about it is irrelevant to those of us who want to know what has happened on the protest. Sometimes, even activists with a film camera are valuable for truth. The argument that it will incite more protest is misguided, because it treats those who are viewing these films as though they are just automatons who will see them and immediately rush out and protest. You might well see the film intended to illicit your support and think what idiots they are. That is not the point. The truth is what we should be concerned with.

I just say to the Government that I am concerned in particular about the serious disruption prevention orders. I have said throughout the discussions on the Bill that there are so many unintended consequences. I have no doubt that the Government are not intending to use serious disruption prevention orders to stop journalism in its tracks. I think the orders are a terrible blight, by the way, and should be removed from the Bill, but that is not the point I am making. The consequences of them could well be that they thwart journalism. That is the point. I urge the Government to consider that they can support their own Bill and accept these amendments in good faith—I thought the noble Baroness, Lady Chakrabarti, explained this well—because they are trying to ensure that what they do not intend to happen, which is that journalistic freedom is compromised, will not happen and that journalists will not get caught up in this. We know that they will. That is the reality. It is a danger and a threat that the Government should get rid of.

[Lord Faulks (Non-Afl)]

My Lords, I have been following this Bill carefully but have not been able to take an active part in it so far. It is difficult not to agree with what the noble Baroness, Lady Boycott, said about the importance of journalism, and I am sure the whole House agrees. I declare an interest as the chairman of the Independent Press Standards Organisation.

Of course, a good and accurate record or recording of what takes place at a demonstration is important for all parties, whether they be demonstrators, the police or the public. What concerns me a bit about the amendment is what it actually does, apart from sending a very important message. That may be enough; I do not know. It seems to me that in fact it would not be lawful for a constable to arrest anybody anyway for observing, recording or reporting a protest, and nor would the exercise of police powers in relation to those matters or indeed any other matter, but I will listen carefully to what the Minister says.

I would also be grateful for some clarification of how this might interrelate to the reasonable excuse defence that exists in various parts of the Bill. I know that there is some uncertainty at the moment about its scope, where it features in terms of the definition of the offence and whether simply saying—understandably, as the noble Lord, Lord Deben, said—that this an incredibly serious cause, ie, climate change, and therefore justifies all the potential offences here. This is a fascinating and important amendment, and I seek clarification in due course from the Minister as to its scope.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support Amendment 117 in the name of the noble Baronesses, Lady Chakrabarti, supported by the noble Baroness, Lady Boycott, and signed by me for the reason so effectively introduced by the noble Baroness, Lady Boycott.

We have seen some very worrying developments. I remember that when I was serving, the police, following criticism, made strenuous efforts to work with journalists, in particular photographers, to ensure that their work was facilitated during protests. A colleague of mine who became chief constable of British Transport Police, Andy Trotter, made great strides in building a good rapport between journalists and the police. Recently, however, there is evidence of disregard for press cards—for example in a briefing from the National Union of Journalists on the arrests of journalists by Hertfordshire Police and other police forces. This seems to be going completely in the opposite direction to the progress made when I was serving.

As others have said, if journalists and photographers are afraid to do their jobs of being at protests and reporting on them, that is very dangerous for our democracy and the right to protest, having a chilling effect, as the noble Baroness, Lady Boycott, put it, on journalism in relation to protests.

As other noble Lords, such as the noble Viscount, Lord Colville of Culross, said, it points to the overly wide offences in the other parts of the Bill, for example,

“being present in a tunnel”.

As the noble Baroness, Lady Boycott, said, journalists have reported from inside these tunnels and could be guilty of those offences. It points not only to the importance of these amendments in protecting journalists but to the overreach of the offences in other parts of the Bill.

As the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead, said, Amendment 127A is an important extension of the original Amendment 117, extending the protections beyond journalists to legal observers, academics and even innocent members of the public watching what is happening and recording it on their smartphones.

However, other noble Lords have not mentioned that it is also damaging to the police. The noble Baroness, Lady Boycott, talked about a dispute where the police asked journalists to turn off their lights and, under cover of the darkness that ensued, engaged in violence towards the protesters. In the situation the police service now faces of ever-diminishing public trust and confidence in it, stories of the police arresting journalists at protests could easily be hijacked and used by anti-police activists further to undermine public trust and confidence in the police.

Nationality and Borders Bill

Lord Faulks Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I support Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire, which I am cosponsoring along with the noble Baroness, Lady Bennett, and the noble Lord, Lord Rooker. I do not always agree with the Lib Dems, but I think the noble Lord’s arguments were very powerful and need to be listened to. The effect of this route is to sell permanent residence in the UK, and later even citizenship, to anyone who turns up with a couple of million to spare, with no questions asked about where that money came from. It is an extraordinary outcome. I can see why one might have thought this was a good idea initially, but it has turned into a nonsense.

As the Committee may know, this route is for individuals able to make an investment of £2 million. The applicant does not need a job offer or sponsor, and the visa includes all immediate family members. The tier 1 investor visa is initially granted for three years and four months and can then be extended for another two years by providing evidence of an investment of the required amount. The funds must be invested in UK gilts, bonds and equities only—of course, the money can be taken out of those afterwards, so it is a very convenient little entry for your money.

Currently, if you invest—so called—£2 million, you will get your permanent residence in five years; if you have £5 million to spare, it is three years; and if you have £10 million in your pockets, it is two years. The whole thing is just absolutely absurd, frankly. Indeed, between 2008 and 2020 it has led to a total of more than 12,000 such visas being issued. There is not even any economic benefit to the UK in this. According to Sir David Metcalf, a former chair of the Migration Advisory Committee, in 2014,

“the main beneficiaries are the migrants. Investors benefit from, for example, rule of law, property rights and access to efficient markets. Second, at present, the investment is a loan, not a gift.”

A MAC report from 2015 noted that the main proponents of this type of visas are—guess what—law firms, accountants and consultancies that help organise the affairs of such extraordinarily wealthy investors. There are also speculative concerns around whether this investor visa is being used by criminals. In an October 2015 report, Transparency International UK argued that it was highly likely that substantial amounts of corrupt wealth stolen in China and Russia had been laundered into the UK via this visa programme.

It is not clear what will happen to the tier 1 investor visa under the new points-based system—at least, it is not clear to me—but it seems that it will remain in place. I suggest that a thorough review is in order and, meanwhile, the route should be closed, as set out in this amendment.

[Lord Faulks (Non-Afl)]

My Lords, I am happy to join the noble Lords, Lord Green and Lord Wallace, and others who have brought this amendment. I may not agree with all that the noble Lord, Lord Wallace, says, but I share with him a passion for the rule of law and a real concern for our reputation for protecting the rule of law. It is a real irony that our reputation for protecting the rule of law is one of the things that attracts people who have very little regard for the rule of law themselves and come from countries which ignore it almost altogether. I am afraid that this Government and their predecessor have a very inadequate record in responding to the threat of corruption of all sorts, and of course I support the proposals in this amendment.

In 2016, the then Prime Minister, David Cameron made a seminal speech about the importance of stamping out corruption. The Minister will remember the Criminal Finances Act 2017 and what a nuisance I was during its passage. I found it inadequate in a number of respects, including unexplained wealth orders, which I did not consider were nearly tough enough. I also put down amendments to try to persuade the Government to establish a register of overseas entities’ property, in order to try to reveal a great deal more about who actually owns vast parts of London. The noble Baroness was emollient and responded that as soon as parliamentary time allowed, there would be an appropriate response. I was slightly reassured by that. I continued to harry the Government. I asked the noble Lord, Lord Young, when he was a Minister, about the progress of matters. He was reassuring—none more reassuring than he—and said good progress was being made.

Nationality and Borders Bill

Lord Faulks Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

On another requirement, that of presenting directly to the authorities, I think the right reverend Prelate already referred to the fact that in many of these cases—for example, wives who have fled from abusive marriages in a conservative religious country such as Pakistan—people have to flee in a clandestine way. That was the word used before. The idea that they can present themselves straightaway—for example, to a male representative of authority—and describe their situation seems unrealistic in many of these cases. Yes, it is true that we welcome large numbers of people under resettlement schemes—Afghanistan and Hong Kong are examples of those—but when we are talking about these other refugees, whom I would describe as the genuine refugees seeking one by one to escape from persecution, it seems to me that Clauses 11 and 36 as currently worded are inconsistent with the convention. For that reason, like my noble and learned friend Lord Brown, I would object to them.

[Lord Faulks (Non-Afl)]

I am very grateful to the noble and learned Lord for giving way, and I agree with his analysis entirely. I just wanted to ask him this question, which the Committee might want to know the answer to: if his view, and the view of the noble and learned Lord, Lord Brown, is right, what would be the consequences of some of these cases—were the Bill to become enacted as it is—if they reached the courts?

[Lord Etherton (CB)]

Strictly speaking, the legal position is that there is no basis for individuals to enforce the convention, but it is enforceable by other member states, which can complain that this country is not complying with its obligations. I would expect that that may well happen. So far as coming here illegally is concerned, my noble and learned friend Lord Brown referred to the Adimi case, which was about whether there was an illegal entry. He held that there was not, because although these refugees passed through intermediate states, they did in fact come directly. So, the individual is placed in a not very satisfactory situation, but the state can certainly be held accountable in the International Court of Justice, and that may well happen.

If I may now descend from the wider view to the narrower, I want to deal with a point I have raised in relation to Clause 11(3) and other similar clauses which impose a requirement on a refugee. The requirement, as it were, or even a breach of it can be overcome if

“they can show good cause for their unlawful entry or presence”,

and there are other provisions saying that this can happen where there is a “reasonable” expectation of something happening or where something is “reasonably practicable”. In all those cases, I have sought to table an amendment which says that, in deciding what is good cause, practicable or reasonable, the immigration officer should take into account any protected characteristic of the refugee within the meaning of the Equality Act which is innate or immutable. I do not want to get too involved in the legality of those terms; basically, that is relevant under decisions in our law to people who claim to be a member of a particular social group. Being a member of particular social group that is being persecuted is one of the categories of refugee in Article 1 of the convention, so I do not want to spend too much time on that. There are nine protected characteristics in the Equality Act, but only some of those will be innate or immutable.

That expression, “innate”, is used in the Bill itself in describing the meaning of a particular social group. Your Lordships will find it in Clause 32, which also expressly states that a

“social group may include a group based on a common characteristic of sexual orientation”.

I want to take up that point to explain why I suggest it is necessary that wherever there is a reference to reasonable cause, reasonable expectation or what is practicable—as I have said—there is an express statement in the Bill that the fact that the refugee has a protected characteristic which is innate or immutable should be taken into account.

I want to take the case of LGBTQI+ people to illustrate the reasons why. First, experience has shown that, all too often, difficulties arising from a characteristic such as that have not been taken sufficiently into account. The approach to LGBTQI+ refugees has often been woefully inadequate and misguided. It was not until the 2010 decision of the Appellate Committee of the Supreme Court in HJ (Iran) that it was established that the Home Office could not refuse an asylum claim from a gay man or lesbian simply on the basis that if they could reasonably be expected to act discreetly in their home country, rather than live openly with their sexuality, they would not suffer persecution. Therefore, it was only some 12 years ago that the Home Office, which fought HJ (Iran) right up to the highest court in the land, was obliged to accept that its approach to LGBTQI+ refugees, in the words of then Supreme Court Justice Sir John Dyson—later Lord Dyson and Master of the Rolls—frustrated

“the humanitarian objective of the Convention and”

denied LGBTQI+ people

“the enjoyment of their fundamental rights and freedoms without discrimination.”

Secondly, it is well known that LGBTQI+ refugees face a large number of practical difficulties in claiming asylum. I will address these in due course, when we come to the relevant clauses in the Bill, to show why there has been a failure to satisfy a particular requirement. In the case of Clause 11(2)(b), the issue is whether they presented themselves without delay to the authorities and can show good cause for their unlawful entry. This is the question of clandestine exit. As I have said, it applies also to abused women in abusive relationships coming from a conservative religious community. They cannot go and buy a plane ticket. They cannot indicate in any way in these countries what the reason for their seeking asylum is. The result could be honour killings, stoning or being thrown off a wall, so they keep their characteristics as far as possible to themselves. It is not surprising that they are slow to report themselves or that their routes here are clandestine.

Finally, on this point, the Home Office’s own statistics show the extent to which claims by LGBTQ+ asylum seekers have been wrongly rejected by immigration officers. Experimental statistics published by the Government in August 2019 on lesbian, gay and bisexual asylum claims show there was an initial decision grant rate of 29% in 2018. However, 38% of appeals relating to LGBT asylum applications were allowed in respect of applications made in 2015-18. These published statistics are qualified in some respects but, in broad terms, they reflect the reality of a substantial proportion of successful appeals. That is why, in my suggestion, wherever we see in this Bill as currently framed any reference to good cause, those with protected characteristics that are innate or immutable must be protected by an express reference on the face of the Bill.

Police, Crime, Sentencing and Courts Bill

Lord Faulks Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

[Baroness Meyer (Con)]

My Lords, I support this amendment, and the first thing I want to say is that we are talking only about men who have not transitioned to women, which is quite different.

Although we have come a long way since the 2007 Corston report to improve conditions for women in prisons, we are now failing them. Indeed, something has recently gone badly wrong. Women prisoners have a right to the security of a single-sex space. By definition, women are deprived of this security if men are admitted to their prison, including trans women prisoners of male sex, whether or not they have the benefit of a GRC. By the same token, a women’s prison is no place for vulnerable at-risk males. Prison policy must provide for the protection of everybody, and this amendment makes that clear.

How then have we allowed prison policy to be captured by a concern for the protection of trans prisoners at the cost of imprisoned women’s most fundamental rights? There is no balance or fairness in that. The answer of course is that government departments have allowed themselves to be influenced, even intimidated, by noisy and modish pressure groups, whose wilful ignorance of basic science has all the features of a cult.

I have never visited or been to a prison, but as a woman I can imagine how it must be to be incarcerated and threatened. On this note, I very much support this amendment and thank my noble friends Lord Blencathra, Lord Farmer and Lord Cormack for tabling it.

[Lord Faulks (Non-Afl)]

My Lords, I have visited a number of prisons, both women’s prisons and male prisons. I have also sat where the noble Lord, Lord Wolfson, sits and answered a number of difficult questions about where you house those who have transitioned, or purport to transition, usually from the male gender to the female gender. It is an incredibly difficult task that the Ministry has to perform, and it requires assessment and nuance. As a young barrister, I had the privilege of representing April Ashley, a pioneer in this field who died about three weeks ago. She changed from a man to a woman after pioneering surgery in north Africa and had lived successfully as a woman for 30 years when she was arrested by the police and thrown into a male jail. She was philosophical about the unfair charge, but less philosophical about the desperately inconsiderate approach that was shown by the police.

Criminal Finances Bill

Lord Faulks Excerpts

3rd reading (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

Moved by

[Lord Faulks]

1: Clause 1, page 2, line 26, at end insert “, or to answer questions on oath”

[Lord Faulks (Con)]

My Lords, the Bill, which has been welcomed across the House, has been the Government’s response to the undoubted need to give law enforcement agencies the necessary capabilities and powers to recover the proceeds of crime, tackle money laundering and corruption and counter terrorist financing. No one could doubt that these are very real problems, and we must ensure that we respond adequately to the threats posed by corruption in its many guises. Throughout the passage of the Bill through your Lordships’ House, the Minister and the Bill team have been very helpful in providing information and explanations in respect of this quite complex legislation. The Government have also tabled some useful amendments as the Bill has progressed.

I am particularly enthusiastic about the potential use that could be made of unexplained wealth orders, which are featured in Chapter 1. There has been precedent for this, provided principally by Ireland and Australia. By and large those orders have been useful, and they have the potential to provide the basis for investigating criminal offences and recovering the proceeds of criminal activity. My concern has always been to ensure that the provisions are as effective as they can be. The opportunities for further legislation in the next few years are going to be very limited, for reasons that the House is only too well aware of. I hope UWOs will be used much more than was suggested. The revised impact assessment indicated that only about 20 UWOs a year might be obtained. The Minister assured me that that was only an estimate, and I hope it was a very conservative one.

Until last Friday we had not seen the promised code of practice relating to UWOs and other provisions in the Bill. Somewhat at the 11th hour, after I had tabled a number of amendments, it arrived. I am grateful to the Minister for providing it, and I will of course factor its contents into my remarks on the amendments in my name and that of my noble friend Lord Hodgson.

We had a number of debates about the safeguards in the Bill. I feel confident that the House is satisfied that they are perfectly adequate, particularly now that there is even a provision for compensation for a respondent whose assets have been wrongly frozen. In addition, there are of course restrictions on the freezing orders that would normally accompany a UWO, and any orders can be varied and discharged.

My concern, however, remains how easy it will be for respondents to deal inadequately with a UWO and render ineffective the Bill’s provisions. It has to be accepted that UWO respondents who have invested the proceeds of tax evasion and/or bribery in specific property will be unlikely to want to be frank about their conduct if they can possibly avoid doing so. Why, then, can it not be appropriate for there to be a power to make an order to compel a respondent to give evidence on oath? It would be only a power, and in many circumstances I concede that a court might be satisfied with a statement, but if the statement is inadequate the very existence of the power, which could be exercised only by a High Court judge, would in my view be extremely salutary.

The Bill sets out the requirements that must be met before an unexplained wealth order is made, and allows a respondent a reasonable excuse for failing to comply with any order. I invite my noble friend to explain to the House why she still thinks it is inappropriate for this power to exist. Nothing in the code of practice gives any answer to that.

The remainder of the amendments with which I am concerned in this group—apart from that which relates to property, particularly in central London—are about provisions in respect of non-compliance. My no doubt simplistic view is that you either comply with an order or you do not. The references to purported compliance seem to leave open the possibility that a respondent could simply go through the motions of providing information and say that they have purported to comply with the order. I take the point that the Bill contains the proviso that a misleading or reckless statement can constitute an offence, but it is not so much the deliberately misleading statement that I am worried about; rather more I fear the short, uninformative, heavily lawyered response which will provide no useful information but may still technically be a purported compliance with the order.

I looked for assistance on this point on the recently provided code of practice. Paragraph 20 states that a respondent will be treated as having failed to comply with a UWO if, without reasonable excuse, he fails to comply with all the requirements imposed by the order. The paragraph continues by stating that it is important to note that where a response is provided to a particular requirement in the UWO but that response is considered unsatisfactory, this does not mean that the respondent has failed to comply with the order; this would amount to purported compliance. That was precisely the point that I was making in the original amendment. A footnote states that an example of this would be where an individual provides nothing more than the bare minimum of information necessary to address each requirement in the order and as a result the agency is not satisfied by his explanation as to the derivation of the property. The footnote goes on to state that, in those circumstances, the rebuttable presumption that the property is recoverable does not arise, but the enforcement agency may elect to take further civil recovery action against the property in the light of evidence or lack of evidence provided by the individual. I should be grateful if the Minister could set out why the Government think it so important, in a number of areas identified in the amendments, to have these provisions about purporting.

Amendment 2 in this group and Amendment 24, which we will debate in the next group, concern a substantial problem: in central London, property—often extremely valuable property—is being bought by overseas companies and then left either empty and dark or occupied for only short periods. Parts of central London are entirely dark at night and, although London is the most obvious example, there is plenty of evidence of buying-up of property in other major cities and in some rural areas. Apart from the fact that it cannot be desirable that property is owned by those whose money has often come from illegal activities, there is the knock-on effect that it is having on the property market in general. Noble Lords are only too well aware of the intense difficulty faced by young people in buying property anywhere remotely near where they work, particularly in London, or indeed buying property at all. There are a number of reasons for this, but the situation is hardly helped when, according to the Land Registry figures, 100,000 properties are registered in the name of overseas companies. Unlike some countries, there is no restriction on foreign ownership of real property, and at the moment there is no sign of any decrease in the enthusiasm with which foreign investors are approaching the possibility of buying property here. Because of our respect for the rule of law and the independence of our judiciary, among other reasons, we are an attractive country in which to invest—particularly, I am afraid, to those who have ill-gotten gains for which they want to find a safe haven.

--- Later in debate ---

I hope that my noble—and noble and learned—friends are satisfied and will not be inclined to press their points any further.

[Lord Faulks]

My Lords, I am grateful to my noble and learned friend and all noble Lords who spoke in this debate, and to the Minister for her response. It is a pity that the Government did not respond to these amendments in Committee. They have received support today and the code of practice does not seem to me to deal with them. On the simple question of purporting to comply, a number of speakers have said that one either complies or does not, and I say with respect that I fail to understand the response to those points. I think it was said that, even if there were purported compliance and not much information was obtained, it would still be technically successful as a UWO. That sounds very much like saying that the operation was a great success but the patient died. However, my noble friend the Minister seems convinced that this is sufficient and I bear in mind the fact that the agencies have no doubt had input into the provisions contained in the Bill.

Likewise, I am disappointed that there is no provision for a requirement to give evidence on oath. The mere existence of that power is likely to inhibit those who might otherwise wish to mislead the court. Of course, if they then came to give evidence, quite apart from the question of contempt of court, they could be prosecuted for perjury. That might give some more teeth to these provisions. I am, however, reassured that it will still be possible to feed some of these ideas into an improved code of practice, and I hope that these debates may have affected the minds of those who seek to improve that code of practice.

On the question of the London property market, I am afraid that I am still in the dark about the envelope tax. The existence of that tax does not seem to be consistent with the overall thrust behind the Bill. Its continued existence is an embarrassment, frankly, to the Government—but there it is. As to the amendment in relation to London property, the noble Baroness, Lady Hamwee, suggested that I had been a little timid in respect of that amendment. In some ways she is right, but the attempt was to tie it specifically to the register that we were told was to come into existence. My noble and learned friend was quite right about the date of commencement—but, for reasons that will be apparent, I do not think that we need to trouble ourselves too much with that.

As my noble friend the Minister quite rightly said, the position is that we are against a time limit. It is important that the Bill becomes law, and any attempt to prevent that would not be helpful since there is all-party support for this. It is very much a step in the right direction and I do not wish to spoil the party. In those circumstances, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I support very much what the noble Lord, Lord Luce, has just said and respectfully associate myself with it. I strongly support Amendment 8. If I may put it this way, I think the Government, and particularly the Minister, have been extremely shrewd in taking the sting out of the points made by the noble Baroness, Lady Stern, who has very wisely brought these issues to this House. The Government have picked them up and produced what seems to me to be the right approach to dealing with the overseas territories. The amendment provides a useful nudge to the overseas territories that the Government are looking at what they are doing, without imposing what is unacceptable upon these independent countries with their own constitutions and parliaments.

I do not agree with Amendment 14. I was at the meeting this morning where representatives from a number of overseas territories explained to us what they were doing. We have already heard about Bermuda and the Cayman Islands, the British Virgin Islands, which are doing very good work, and from Anguilla and Montserrat about the efforts they are making. We have heard from the Minister about the Turks and Caicos Islands, which with their new Government are now working to get this through. So the areas contained within Amendment 14 are already on the way, if not ahead of us in some cases, and it is not necessary that they should be referred to specifically in it. I do not want to hold everyone up. I support Amendment 8 and I do not think Amendment 14 is really necessary now.

[Lord Faulks]

My Lords, I shall speak to Amendment 24 in my name and that of my noble friend Lord Hodgson of Astley Abbotts in this group. It concerns the setting up of a public register of beneficial ownership of UK property by companies and other legal entities registered outside the UK. Those are more or less the words that are the subject of a call for evidence issued by the Department for Business, Energy and Industrial Strategy in April this year. I do not know but I assume that the Home Office did a great deal to bring forward the publication of that report in the light of the debates which took place in Committee about the concern that was generally expressed about corruption and the acquisition of property in central London by overseas companies hiding behind anonymity.

The establishment of a public register was indeed a commitment made by the Government. Why do we need a register of this sort? I can do no better than quote briefly from the call for evidence, which says,

“the government is concerned about the potential for illegal activity to take place through overseas companies investing in the property sector. Some properties are owned through off-shore companies in order to obscure their true owners. This can make it difficult for regulators, legitimate businesses and the general public to know who the true owners are and can make it very difficult for law enforcement agencies to carry out effective investigations … Greater transparency of property ownership will make the job … easier and will discourage criminals and the corrupt from choosing the UK to hide or launder their money”.

It is made quite clear that the Government intend to introduce a register of beneficial owners of overseas companies but, as it is a call for evidence, it does not seek to prescribe the nature of that register but calls for advice and information to assist it in formulating the register. It may well be influenced by what the noble Lord, Lord Eatwell, said about verification to make any such register particularly useful.

The amendment in my name and that of my noble friend Lord Hodgson simply asks the Government to do that and make it a part of the Bill. If we do not, there is real feeling that there will not be legislative time even in the Parliament that may start in June. I ask the Minister to reassure us that the register will be set up in short order.