National Security Bill

Debate between Lord Hope of Craighead and Lord Marks of Henley-on-Thames

Committee stage
Monday 19th December 2022 Lords Chamber

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

My Lords, all the amendments in this group are in my name and that of my noble friend Lord Purvis of Tweed. Before speaking to them, I make a general observation which is applicable to nearly all the amendments we have put down for debate today.

Broadly, Part 1 of the Bill is aimed at updating and clarifying the law against espionage, sabotage and subversive behaviour which threatens the safety, security or defence of the United Kingdom. We and the whole House support that aim, which is clearly described in the Long Title: to

“Make provision about threats to national security from espionage, sabotage and persons acting for foreign powers.”


However, as I said at Second Reading, we on these Benches wish to ensure that the Bill sticks to that remit and is not so wide as to damage individual liberties which our security and defence services are there to protect.

The amendments in this group would ensure that guilt of the relevant offences could be established only on the basis of actual knowledge of essential facts, and not merely what is often called imputed knowledge. The Bill talks of what a person ought reasonably to know rather than what they might be deemed to know. However, we object to the addition of

“or ought reasonably to know”

after “know”.

I shall remind your Lordships briefly of the offences covered by these amendments and the sentences proposed for them. The offences in Clause 1, “Obtaining or disclosing protected information”, and Clause 12, “Sabotage”, both attract a maximum sentence of life imprisonment. All four offences in Clause 2, “Obtaining or disclosing trade secrets”, Clause 3, “Assisting a foreign intelligence service”, Clause 4, “Entering a prohibited place for a purpose prejudicial to the UK”, and Clause 15, “Obtaining etc material benefits from a foreign intelligence service”, attract a maximum sentence of 14 years imprisonment. The offence in Clause 5, “Unauthorised entry etc to a prohibited place”, is in a different category because it is a summary offence, but, apart from that Clause 5 offence, all these offences are treated very seriously indeed.

Yet in order to be guilty of the offences, the defendant does not actually have to know essential facts. It is enough if they “ought” to know them. In Clause 1, the offence is committed if the person

“obtains, copies, records or retains protected information, or … discloses or provides access to protected information”.

Clause 1(b) provides that the person’s conduct has to be

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

In the next group, I will make the point that the interests of the United Kingdom concerned ought to be the “security or defence interests”, not just interests in general. But in this group, our point is that, in order to be guilty under this clause, the person should actually have to know that their conduct was for a purpose that was prejudicial to the UK. It should not be sufficient to constitute guilt that they merely “ought to have known” that, even if they did not. That is the point of our Amendment 1.

Another unsatisfactory feature of this and other clauses is that the clause presupposes an actual purpose—that purpose, presumably, being the reason for the defendant’s actions. It would be very odd if, the prosecution having established the purpose, the additional requirement of knowledge could be met not by showing that the defendant knew that that purpose, which was his or her own, was prejudicial to the national interest but merely that they “ought” to have known that.

Under Clause 2, which is the trade secrets offence, the defendant’s conduct, under the Bill, has to be “unauthorised”. However, as drafted, the defendant does not have to know that the conduct is unauthorised; it is enough if the defendant “ought” to have known that. Our Amendment 7 would change that.

Under Clause 3, “Assisting a foreign intelligence service”, it should be required, we say, that to convict a person of this offence, they actually knew—the Bill says that they ought to have known that it was “reasonably possible”—that

“their conduct may materially assist a foreign intelligence service”,

not merely that they should have realised that the possibility existed. Amendment 14 would address this. We also say that the word “likely” would be more effective than the words “reasonably possible”, but that is addressed in a later group.

In Clause 4, the offence of entering a prohibited place suffers from the same inherent problem as the Clause 1 offence. The purpose has to be proved, but the defendant does not actually have to know that the purpose was prejudicial to the safety or interests of the United Kingdom; it is enough that they “ought reasonably” to have known. The clause heading, “Entering etc a prohibited place for a purpose prejudicial to the UK”, highlights the illogicality. How can you have that purpose if you do not actually know that the purpose is prejudicial at all? Yet the clause as drafted says that you can; that should go, and our Amendment 17 would remove it.

Clause 5 is the summary offence of unauthorised entry to a prohibited place. Under the Bill, proof of actual knowledge of the lack of authorisation is unnecessary; again, merely the defendant “ought” to have known that. Our Amendment 22 addresses that.

Regarding Clause 12, the very serious sabotage offence, the same point applies to the purpose as in Clauses 1 and 4. Again, we say that guilt ought, crucially, to depend on actual knowledge that the purpose was prejudicial. Amendment 36 addresses that.

Amendments 46 and 48 make similar points about the defendant’s knowledge of the source of benefits provided by a foreign intelligence service. Amendment 65 would amend the application of the foreign power condition in Clause 29, which states that

“the person knows, or ought reasonably to know,”

that the conduct is carried out

“on behalf of a foreign power.”

The foreign power condition in the Bill is a very important condition for liability for a number of these offences. How can it possibly be just for the law to provide that the condition can be met if a person does not know that their conduct is carried out on behalf of a foreign power and naively does not catch on, just because it is later decided that even if they did not know at the time, they should have realised? Juries can, and frequently are asked to, come to a conclusion about what defendants know or knew or even what they believe or believed. Juries are good at determining actual states of mind, drawing conclusions from the evidence they hear and see.

To take a simple example, the Theft Act defines receiving stolen goods as:

“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods”.


But here we are concerned with the proposal that juries should decide cases not on the basis of conclusions they reach about an actual state of knowledge or belief but on views they may take about what the defendant did not know but should have done. These are value judgments, not true decisions of fact.

We are not suggesting that imputed knowledge is never used in the criminal context, but where it is the context is very different. It is used, for example, for insider trading in Canada, where professional insiders receiving tips are able to be found guilty on conclusions that they ought to have drawn. It is used in the Protection from Harassment Act 1997 in respect of defendants who should have known their own conduct would amount to harassment. In the Official Secrets Act 1989 the reference is broadly to unlawful disclosures by Crown servants and contractors or others to whom confidential information was entrusted. They have a defence to unlawful disclosures if they show they did not know and had no reason to believe that the disclosures were unlawful. The burden of proof is reversed, I accept, but I suggest that is because of the positions the defendants hold or held. However, lack of knowledge or of the reason to believe in a state of fact amounts to a defence even then, so that liability is a long way from these cases because these provisions may catch anyone with no special relationship to the Government on an assessment that the defendant did not know the relevant facts but ought to have done so. Our position is that that is unjust. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I venture a few thoughts on this phraseology. The crucial question is: how much would the prosecutor have to prove about the state of knowledge of the defendant? In some contexts, when phraseology of this kind is used, it is necessary to show what the individual knew was the state of the law and what information that individual had at the relevant time from which a conclusion should be drawn.

The problem with the phraseology here is that it is so general that it is not clear whether the knowledge the individual had is to be the actual knowledge which that person had, which is one thing, or, as has been suggested by the noble Lord, Lord Marks, imputed knowledge. If we are dealing with imputed knowledge, the situation becomes much more serious, particularly having regard to the fact that one is concerned with not just the safety of the United Kingdom but the interests of the United Kingdom, which itself is an unfortunately vague expression. I think it would help the Committee if the Minister would explain exactly what a prosecutor would be expected to have to prove in order to establish the offence.

Putting myself into my former position of prosecutor, I would find it quite troublesome to have to face up to proving not only what the individual knew about the law but what the individual knew about the facts. But it would be quite reasonable for me as a prosecutor to have to do that. To impute knowledge of facts to an individual with an offence as serious as this is to take the matter a long way from a reasonable punishment with the extreme penalties mentioned in this clause. It would be helpful if the Minister would explain exactly what would need to be proved in order to establish the offence so that the noble Lord and those supporting know exactly where they are.

Judicial Review and Courts Bill

Debate between Lord Hope of Craighead and Lord Marks of Henley-on-Thames

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.

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

My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.

I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate

“what would otherwise be quashed as unlawful”,

and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.

New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.

We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.

The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Hope of Craighead and Lord Marks of Henley-on-Thames

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

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

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

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

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.