National Security Bill

Lord Purvis of Tweed Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[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.

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[Lord Evans of Weardale (CB)]

My Lords, I acknowledge the changes that have been made to Amendment 79 since it was introduced in Committee, but I still do not feel that it would be appropriate and right for us to accept it. The noble Lord, Lord West, has pointed out a number of the reasons why, but I emphasise that we are being invited to introduce a public interest defence for what is, straightforwardly, espionage on behalf of a foreign service. I do not believe that we need to provide a public interest defence when an individual obtains and provides protected information on behalf of a foreign power while recognising that this is prejudicial to the safety of the United Kingdom.

I also recognise that the amendment extends to the Official Secrets Act 1989 but, again in support of the noble Lord, Lord West, I say that, if we are to change that, we must do so in a careful and deliberate fashion and bring forward legislation to do so. The 1989 Act does not deal with espionage on behalf of a foreign intelligence service. It is drawn up for different purposes. Therefore, it is separate from the issues that we are considering regarding the Bill. More broadly, it remains extremely dangerous to encourage or to lead individuals to believe that there is a public interest defence to the disclosure of highly sensitive information. Any one individual is unlikely to be able to make an accurate assessment themselves of whether their declaration and their disclosure is damaging to national security. That must be considered carefully, and it is not something for an individual official, however senior, to take on themselves. Therefore, any legislation and any amendment that might encourage them to do so is misguided.

Also, once a disclosure has been made, it cannot be withdrawn. Even though there may be benefit in prosecuting an individual for having done it, that does not stop the damage that has already been done. Therefore, we must have care not to lead people into believing they will be able to defend themselves having already made a disclosure, because the damage will have occurred.

Finally, on the question of evidencing damage, I recognise that the change in the burden of proof is a significant change to the amendment. Nevertheless, we are then faced with a situation where a person who has been accused of this offence will be trying to argue that they did not cause damage. In so doing, they are likely to adduce more evidence and more contextual material which might itself be damaging. It is not clear that this makes it easier in terms of the evidence or that it makes the prospect of prosecuting people for harmful activity any easier. For these reasons, I do not support this amendment. I hope that the House agrees.

[Lord Purvis of Tweed (LD)]

I have a question on a point of clarification. I understand the point that the noble Lord makes regarding those offences which may be at the direction of a foreign power, as in espionage. However, the Bill contains offences that are not necessarily at the direction of a foreign power. His point would mean that my noble friend’s amendment would offer no public interest defence for those offences in this Bill which are not under the direction of a foreign power—as in, not espionage offences.

[Lord Evans of Weardale (CB)]

If I am being invited to comment on whether I would support a different amendment, I say that might well be the case. However, I do not support the amendment that is before us.

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[Lord Murray of Blidworth (Con)]

The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.

[Lord Purvis of Tweed (LD)]

The Minister was careful when he said that the SBAs and the FCDO were consulted by the Home Office on bringing forward this decision. I would assume that one department would consult another in its own Government with regards to a Bill—I think we can take it as read that the Home Office should have consulted the FCDO. The point that the noble Lord, Lord Carlile, made was that there was no consultation with the Government of Cyprus, which is embedded in the principles of the establishment treaty in 1960. That is why there is a problem with it.

With regards to the further point from the noble Lord, Lord Anderson, if it is only a UK constable, and only within UK domestic law, who enforces it within the SBA area? Who enforces it within the adjacent area to the SBAs, given that the measures are much wider than simply activities here in the UK? Who enforces it there?

[Lord Murray of Blidworth (Con)]

As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.

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[Lord Carlile of Berriew (CB)]

My Lords, I rise briefly, I hope, to say that, first, I agree with everything that my noble friend just said and will not repeat it. Secondly, I regard Amendment 66 to be a considerable improvement on what we were faced with before we started the Bill. Indeed, it is not a provision that provides immunity, it is evidence-based, it has a strong public interest element, but it is not perfect. One of the complaints I have received—only anecdotally but from authoritative sources—is a lack of understanding, among fairly senior public servants, of why the Secretary of State no longer carries any responsibility for the sort of decisions referred to in Amendment 66. The requirement in its subsection (5) that the Defence Council must ensure that the Armed Forces must have various arrangements in place is welcome as far as it goes, by why are Secretaries of State being eased out of any level of responsibility for decisions of this kind? I am not sure there is total confidence, among the kind of officials I have referred to, in the Defence Council to be as definable a source of responsibility as the Secretary of State.

[Lord Purvis of Tweed (LD)]

My Lords, I understand that our order of business has been changed today. The Government Whip did not consult our Front Bench and, for those of us who had engagements during the dinner-break business, I think it is a discourtesy not to have at least consulted the Front Benches of other parties about changing the order of business.

That said, I welcome the government’s amendments. The noble Lord, Lord Anderson, is absolutely right. The noble Baroness, Lady Manningham-Buller, had indicated her hope that there would be government amendment in this area, and I thank the Minister for listening during Committee and for bringing forward these amendments. In Committee, I went to some lengths to outline what domestic procedures are in this area. The noble Baroness, Lady Manningham-Buller, asked something I thought was rather threatening: if she could have a quiet word with me outside the Chamber during the hour for other business we had then. I am glad to say now that I will accept that and bring the Minister with me, because there may be an element of consensus on a more sensible way of dealing with concerns raised about immunity for, potentially, very serious crimes committed overseas.

I am grateful that the domestic practices will now be considered similar to extraterritorial processes, acknowledging that there have been distinct differences. My questions, to some extent, are linked with those raised by the noble Lord, Lord West, on how this will be operated. In Committee, I highlighted the Government’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. I referenced the Ministry of Defence joint doctrine publications, and I highlighted the Security Service guidelines that had been released in a trial, and we now know more about them. There are a number of existing sets of guidance for the Cabinet Office, from the MoD and within the security services themselves on how, as the amendment states,

“arrangements designed to ensure that acts of a member of the service to which a provision of Schedule 4 applies are necessary”.

I would be grateful if the Minister could outline how guidance will be put together that will be for both domestic activities and now those in regard to defence under this part, whether that will be made public, and how it will interact with MoD guidance to address the similar concerns of my noble friend Lord Beith and the noble Lord, Lord West.

We know what MoD joint doctrine says regarding detainees overseas, but we do not know the principles that will apply to these new areas. Therefore, we need clarification on what they will be. I welcome the Government’s move. There needs to be further illustration of how it will be operable, and I hope the Minister will be able to provide that and give an indication of when guidance will be put together and will be published.

[Lord Coaker (Lab)]

My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.

The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.

My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.

I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.

A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.

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The noble Lord, Lord Purvis, asked about publishing guidance. The Government have no plans to publish specific arrangements, but relevant published policy documents are already available, such as the Fulford principles and the OSJA Guidance. In addition, UKIC’s activities are scrutinised by the Intelligence and Security Committee, and challenge can be brought to the UK intelligence community or the Armed Forces on their activities—for example, through judicial review, a civil damages claim or a complaint to the Investigatory Powers Tribunal in relation to the use of intrusive powers. We will continue to work with UKIC to consider how we can be forward-leaning in showing appropriate partners how we consider risks internally while protecting operational security.

[Lord Purvis of Tweed (LD)]

The Minister knows that, in Committee, I quoted quite a lot from the OSJA human rights guidance, which I have before me. It also addresses the fundamental point of my noble friend Lord Beith. Both the security service guidelines—which are not published, but about which we know because of judicial processes—which categorise the means by which authorisations have to be secured, and the OSJA Guidance outline the risk assessments that officers must go through. They conclude that, if there is high risk, ministerial approval is necessary. The Government’s amendments do not state categorically that authorisations and ministerial approvals will be necessary for breaches of the SCA offences. Can the Minister confirm that it will be the case that, if there are breaches of the SCA which are forecast through risk assessments and during the processes, ministerial authorisations will have to be provided?

[Lord Sharpe of Epsom (Con)]

My Lords, I cannot confirm that from the Dispatch Box, but I will write to the noble Lord with the appropriate clarification. I do not actually have a copy of the OSJA Guidance in front of me, but I appreciate the points he is making.

I return to the third concern raised by the noble Lord, Lord West. I can confirm that, where a member of the intelligence services or the Armed Forces conducted activity that did not comply with the arrangements—namely, the rigorous safeguards, standards and internal processes that I described earlier—this breach of the arrangements could be scrutinised by the proper oversight mechanisms; for example, an error would be reported to IPCO for a breach of the Fulford principles. It could be considered by the prosecution and would impact the availability of the defence. I also assure the noble Lord that the introduction of this new defence, in and of itself, will not lead to fewer ministerial authorisations sought by the intelligence services or to less daily oversight from Ministers and/or judicial commissioners over intelligence activity. I know that he asked me for an explicit reassurance on that point.

I conclude by saying that, for the reasons I have outlined, the Government cannot support the amendments tabled by noble Lords against Clause 30, and therefore ask noble Lords not to press their amendments. I also ask the House to support the new SCA defence amendment tabled by the Government.

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[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for his clear explanation. There remains a slight degree of uncertainty. Presumably the Government will issue guidance to be put in place before the scheme is operational. We raised this at our meeting with him.

I wonder whether, in advance of us considering FIRS next week, we could have more information about what the draft guidance will look like as part of the engagement that the Minister has committed to, which is welcome. We have seen some elements of the draft regulations and heard some explanations from the Government but, if he could expand on what the draft guidance might be, that would provide some reassurance to the Stiftungen and other organisations that are hurriedly trying to find out where they fit in this area around what a foreign power will be and the interaction with either intermediaries or those who are funded by them. It is hard to outline that in the Bill but, if the Minister could provide that information in advance of next week, it would inform us very well.

[Lord Balfe (Con)]

My Lords, before the Minister comes back, could either he or a representative of the Government talk to the German ambassador and clear up this difficulty because the Germans are quite convinced that they are caught by this? It would be good if he could come back here and say, “I’ve spoken to the German ambassador or the First Secretary and we have agreed this”. Otherwise, the confusion will carry on.

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[Lord Purvis of Tweed (LD)]

My Lords, I am not sure whether the noble Lord will seek to test the opinion of the House—he is nodding from a sedentary position. If he does, we will support him. However, that is not to disregard that the Government have listened and responded positively to the points made in Committee on the need for independent oversight.

Therefore, I will support what the Government say, with just with one question regarding oversight and their intention. We have two former independent reviewers in the House at the moment. I am not sure what normal practice is, but the Government’s amendment, regarding the independent reviewer providing a report to the Secretary of State and the Secretary of State then laying that before Parliament, gives no indication of a timeframe for laying the report before Parliament after it has been received from the independent reviewer. Given the earlier comments from the noble Lord, Lord Coaker, regarding Governments not providing information to Parliament in a timely manner, could this unfortunately be a wee loophole in the independent reviewing? It seems that the amendment gives Ministers complete discretion on when they may present reports to Parliament. Therefore, reports could be received from an independent reviewer but not presented to Parliament for a considerable period or at all.

I hope that is not the case and that this can be clarified by the Minister, but it is an omission within the Government’s amendment, which is otherwise welcome. As I say, the Government have moved, but I hope that the Minister can respond on the areas of omission.

[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.

I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.

The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.

The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.

I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I wonder if he might be able to address my point—which I remind him is the only point that I made?

[Lord Murray of Blidworth (Con)]

I certainly addressed the point which he generously made praising the Government for our amendments. The point that he raised in relation to the Labour amendment, on the basis that there is no timeframe in the present amendments, is not valid in the Government’s submission, because the Labour amendment itself does not contain any binding requirement on the laying of reports. In our submission, that would remove a level of flexibility. In the area of national security, it is important not to hedge about these kinds of provisions with time requirements. For those reasons, we do not believe that the amendment is necessary. I hope that answers the noble Lord’s question.

[Lord Purvis of Tweed (LD)]

I know that this is Report and we do not have to and fro, but I was making the point that it was an omission in the Government’s amendment. It is utterly open-ended as to whether the Secretary of State will lay the report from the independent reviewer before Parliament. I was seeking clarification from the Minister that that would not be the case.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it was me who moved Amendment 80, which is the first amendment in this group. I thank the noble Lords, Lord Purvis and Lord Anderson, for supporting it. Regarding Part 5, which is covered by my amendment, the Minister described it as supplementary. Well, it may be supplementary, but it is very consequential, because it provides that the Government can make any consequential provision that is a result of this Act, and that consequential amendment can apply both within and outside the UK. It is very significant, even though the Minister may describe it as supplementary.

For that reason, and to provide a more comprehensive view of the Act, as it will be in due course, I wish to test the opinion of the House on Amendment 80.