National Security Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Coaker (Lab)]

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

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

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

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

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

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

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

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

We know the phrase in the clause as it stands,

“the proper exercise of any function”,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Beith (LD)]

The Minister has repeated several times his reference to the Armed Forces, but, up to now, always in the context of support for intelligence organisations’ activities. It would be helpful if he could clarify—he is nodding; I think he is indicating that he might do so—whether the inclusion of the Armed Forces is intended to confer the immunity on their general range of activity or is intended to be confined to their support for the intelligence agencies.

[Lord Sharpe of Epsom (Con)]

The noble Lord has pre-empted me by about a second. A number of noble Lords have asked why the Armed Forces are included, including the noble Lords, Lord Purvis, Lord Anderson, Lord Beith, Lord Carlile and Lord Coaker. The Ministry of Defence collaborates with a diverse array of allies and partners, with intelligence sharing often forming a key part of such efforts. The Armed Forces also work closely with the UK intelligence and security community, helping to protect the UK from myriad threats overseas. The protection provided for in Clause 28 seeks to ensure that where our Armed Forces collaborate and provide authorised operational support with international partners, as with UKIC, support can continue without exposing individual staff or officers to personal risk of criminal liability. I hope that answers the question to the noble Lord’s satisfaction.

[Lord Beith (LD)]

It would answer the question if the clause was so defined as to limit the extent of the immunity to acting in support of the intelligence agencies. However, as I read it, it does not do that.

[Lord Sharpe of Epsom (Con)]

I will continue, but I will come back to that, if I may.

I want to return to the question asked by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Hope, seeing as we are talking about the application of this, and also to the point on torture. There will be no change to the UK’s other domestic and international legal obligations, including those under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international obligations on assisting an unlawful act, which is Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. I hope that is unequivocal enough.

[Lord Carlile of Berriew (CB)]

I apologise for interrupting the noble Lord. Before he moves on, could he give us two figures which I am sure he must know or could be given very quickly? First, in relation to the security services, how many cases have there been in the past 10 years of the kind we are discussing in which the Director of Public Prosecutions has had to make a decision as to whether a prosecution should take place? Secondly, how many events have been affected adversely over that period by the existing state of the law?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not have those figures to hand. I am not sure that I will be able to get them, but I will do my very best to find out and come back to the noble Lord on that question.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way, and I look forward to that reply when it comes in writing. If I have this right, the Minister said that it makes no difference—there is no change—to the approach on unlawful killing, torture or cruel or inhuman treatment. Is he saying that this clause does not provide immunity in offering assistance to others who would be committing unlawful killing, torture or cruel or inhuman treatment?

[Lord Sharpe of Epsom (Con)]

As I said earlier, I think this is confined very much to the intelligence support by the Armed Forces—is that what the noble Lord is referring to?

[Lord Purvis of Tweed (LD)]

I am grateful. No, it is not. The Minister said that there was no change to the approach on unlawful killing and torture. My reading of this clause is that there would now be immunity for offering assistance to others to carry out unlawful killing or torture.

[Lord Sharpe of Epsom (Con)]

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

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

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

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

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

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

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

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

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

[Lord Coaker (Lab)]

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

[Lord Sharpe of Epsom (Con)]

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

[Lord Purvis of Tweed (LD)]

Could the Minister give a little more information as to why there is no immunity?

[Lord Sharpe of Epsom (Con)]

The noble Lord does not want there to be immunity.

[Lord Purvis of Tweed (LD)]

No. Why, under this clause, would there continue to be no immunity?

[Lord Sharpe of Epsom (Con)]

Perhaps I could get to the end and then clarify this. As I said earlier in relation to the SCA, I can confirm that the examples that the noble Lord, Lord Purvis, asked about have been provided to the ISC. As the noble Lord, Lord Coaker, pointed out, it has agreed that this is a problem that requires a solution.

It is vital to acknowledge that Clause 28 will not create blanket criminal law immunity or change the application of all other criminal law offences, including those criminalising torture anywhere in the world, as I have said a number of times. The UK remains committed and subject to international legal obligations, including under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and international obligations on assisting an unlawful act under Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. The amendment to the SCA offences applies only when persons acting for UKIC or the Armed Forces are acting within the proper exercise of their functions. We do not consider that the activities that are of concern and the focus of this amendment would amount to the proper exercise of those functions. I hope that is clear.

I want to be clear that any individual found to be working outside the proper functions of the intelligence agencies or Armed Forces will remain personally liable for those actions under the SCA offences, as well as other applicable laws. Meanwhile, it will still be possible for legal challenges to be brought against the intelligence agencies and Armed Forces in relation to allegations of unlawful behaviour, whether in the form of judicial review, civil damages claims or through a referral to the Investigatory Powers Tribunal. That is exactly as it should be.

In response to the point from the noble Lord, Lord Carlile, I say that the Government’s position is that this amendment is not intended to, nor would it have the effect of, removing the role of the relevant Secretary of State from the oversight of the intelligence and security services.

The noble and learned Lord, Lord Judge, and the noble Lord, Lord Coaker, spoke about the current reasonableness defence and effectively why it is not enough. There is an existing reasonableness defence in Section 50 of the SCA, as has been noted, which was included in recognition that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.

[Lord Carlile of Berriew (CB)]

I am very sorry to interrupt the noble Lord again. He said that this would not remove the oversight of the Secretary of State and I absolutely accept that. Of course the Secretary of State will have oversight, but does the noble Lord accept that authorisation by the Secretary of State, at least in some cases, will no longer be a requirement?

[Lord Sharpe of Epsom (Con)]

I see where the noble Lord is coming from and, yes, I accept that.

I return to the reasonableness defence in Section 50. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable, the application of the reasonableness defence to UKIC’s activity is untested.

I come back to one of the earlier points from the noble Lord, Lord Carlile. I am not aware of any prosecutions, but he will know that I cannot comment on operational matters.

I also come back to the questions about the CPS. The fact that the CPS would not be obliged to prosecute offers little comfort to those carrying out legitimate work on behalf of His Majesty’s Government, who may still be subject to criminal investigation for carrying out authorised activities in the interests of national security. The Government consider that we should be able to offer legal reassurance to individuals carrying out vital work to support those interests.

I finish by reiterating that I am committed to continuing to work with the experts in this House, particularly the noble Lords who have tabled the amendments we have debated, and those in the other place to reach consensus on Clause 28. I thank all noble Lords for their patience as we move towards that shared objective.

I have noted the comments from the noble Lord, Lord Coaker, on timeliness but, at the moment, the Government cannot support these amendments and I therefore respectfully ask noble Lords not to press them.

[Lord Pannick (CB)]

Before the noble Lord sits down, could I see whether I have understood him correctly? Is he saying that an act of torture or sexual offences committed in support of another country’s services could not be a proper exercise of the functions of the Security Service—the SIS—or GCHQ? If he is, would it not be better to have that on the face of the Bill rather than simply as a statement from the Minister?

[Lord Sharpe of Epsom (Con)]

That is what I am saying. I will come back to whether it should be on the face of the Bill in due course.

[Lord Purvis of Tweed (LD)]

I am very grateful for that last interaction between the noble Lord, Lord Pannick, and the Minister. I am also grateful for the Minister continuing to have a degree of open-mindedness. I do not know where I sit on the cascade of legal hierarchy, but I think it is lower order. I do not know if it is just me, but a frisson of nervousness went through my spine when the noble Baroness, Lady Manningham-Buller, asked for a quick word outside. If I could avoid that, it would be better.

I am well aware of the distinction between SIS officers working under a CHIS authorisation and what is covered under the ISA. I am also well aware of MI5 officers running agents who carry out criminal activity. The point I was trying to make is that there are clear distinctions and that we have procedures with regard to MI5 officers running agents who carry out criminal activity, but there is no immunity for them to do so. The point I made in my opening remarks is that the processes that MI5 has are effectively the defence. The concern with the breadth of this immunity is that those processes will no longer be the case.

I am also well aware of our international obligations, but it is under domestic law that we would realise what those natures are. Because of the extraterritorial nature of the schedule in the SCA, I am still not convinced in the reading of it that our intelligence services and Armed Forces would be able to operate under domestic law in offering assistance to others carrying out criminal acts. Those criminal acts may well also be breaches of international law. I am grateful for what the Minister said, but I am also grateful for his willingness to engage further on that.

I hope the Minister took on board the consensus with regard to concerns about the Armed Forces. The point I made at the start of this debate is that, unique among the SIS and GCHQ included within this, the Armed Forces have powers of detention. Therefore, the processes under way under the MoD doctrine for risk assessments on torture, cruel, inhuman or degrading treatment, extraordinary rendition or rendition, and unacceptable standards of arrest and detention are all areas of considerable concern, if there is immunity for our Armed Forces when working with others.

Of course, the guidance that exists also includes the receiving of unsolicited information or providing or sharing information on collaboration. These risk assessment processes are in place—they are in published principles and guidelines—and the considerable concern is that they will be washed away by the extent of the immunity.

I am grateful to the Minister for being open. I still think that he has not sufficiently addressed all the areas of concern, not least that there would be a considerable diminution of independent oversight in the operation of this. I will withdraw my amendment at this stage. I accept the Minister’s word that he will engage fully before Report, and I hope he will be able to put in writing responses to all the issues that have been raised on this so that we can study it carefully before Report. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

No; I cannot respond to that gallantly, can I? I will plough on.

Interestingly, my son recently completed a master’s in journalism at City, University of London. He told me that the public interest part of the journalism course was the least attended, partly because there are fewer jobs in it, which I thought was interesting and worth reflecting on. It is a very important part of any journalist’s work, but it is not where the majority of students choose to study. I thought that was an interesting observation.

The amendments in this group relate to defining a foreign power for the purposes of its activity in the UK. The noble Baroness, Lady Jones, moved her Amendment 66A, which would ensure that journalists and civil society are not wrongly included. This debate could have spread over to the group we will discuss on Monday on the foreign influence registration scheme and how that affects businesses, universities and political parties. In a sense, we will revisit a lot of these issues. Nevertheless, noble Lords have made points that will bear repeating, because they can be repeated in that context.

The noble Lord, Lord Marks, tabled similar amendments to create exclusions in certain instances. Amendments 67 and 69 would expand the definition to include corporations working on the behalf of foreign Governments. It is worth reflecting on the Government’s previous inconsistent approach to Huawei in 5G networks, and their lack of understanding of the risks. I believe that this underlines a need for a more coherent strategy. Serious questions remain following the 2020 announcement that Huawei would be removed from UK 5G networks, which we believe was long overdue, about why it was given the go-ahead in the first place. The Huawei case was sadly illustrative of how, in the past decade, the Government have allowed our national security to become an afterthought, creating risks to it. We on this side of the House believe that the Government need to invest in homegrown alternatives to end our national dependence on high-risk vendors.

My noble friend Lady Hayter made a number of very interesting points about political parties, which were picked up by other noble Lords in the debate. I would be interested to hear the Minister’s answer to the points she raised.

The noble Lord, Lord Black, referred to the letter in the Times today to which he was a co-signatory. The noble Baroness, Lady Stowell, also spoke about the potential chilling effect of the Bill’s provisions as they are currently drafted. They both spoke about the importance of a public interest journalism.

The noble Lord, Lord Wallace, made a point that I think will be repeated on Monday but is well worth repeating. It is the problem of overreporting. That is a theme that has run through all the briefings which I have received and that I am sure all noble Lord have received. It a fear in the university sector, the business sector and political parties, and literally hundreds of NGOs are also concerned about this matter—but that is something that can be talked about on Monday, as I have just mentioned.

When the noble Lord, Lord Purvis, summed up, he put his finger on the main problem with this section of the Bill, which is defining the anomalies of political parties, whether they are in government or not, or are part of coalitions or are opposition parties, and the many sorts of relationships which all political parties have internationally and how that works with the points made by the noble Lord, Lord Black, about the importance of public interest journalism, and how that is a very international approach, often dealing with leaked information and illegal information, and how journalists are to be protected in pursuing that valuable work. So this is a complex area. I am sure the Minister will, as usual, be very careful in his answer, but I hope he retains an open mind, as he did on the previous group when we were considering issues raised in this Committee.

[Lord Sharpe of Epsom (Con)]

My Lords, I again thank all noble Lords who have participated in this debate. Amendment 66A seeks to exclude journalism and civil society activity from the foreign power condition unless the conduct is instigated by or is under the direction or control of a foreign power. I acknowledge the intention of the noble Baroness, Lady Jones of Moulsecoomb, to protect legitimate activity from being criminalised under the Bill with this amendment. However, the Government do not believe that the Bill criminalises legitimate activity and, as such, it is our view that this amendment is unnecessary.

The Committee will be aware that the foreign power condition provides a single and consistent means by which a link between a person’s activities and a foreign state can be drawn. Meeting the foreign power condition is not in itself wrong. It becomes relevant when the other elements of the offences to which it applies are met. As such, the Government do not believe there is a risk to those who engage in legitimate acts, such as journalism or forms of civil society activity.

Turning to the specifics of the amendment, we know that those with hostile intent seek to hide their activities under the appearance of legitimacy, and this amendment could therefore create a gap in our ability to prosecute such individuals. This amendment would mean that an activity carried out with the financial or other assistance of, in collaboration with, or with the agreement of a foreign power would not meet the requirements of the foreign power condition. As a consequence, where a state threat actor posing as a journalist has been engaged in harmful activity which is an offence under the Bill, they would not commit an offence even if we could show that they were receiving specific funding in relation to that activity from a foreign power. This would produce an unwelcome effect whereby those seeking to cause harm to the UK could pose as journalists or members of civil society groups or operate through proxies in order to make it more difficult to be prosecuted.

The Government understand that journalists and those conducting civil society activity can be acting wholly legitimately when receiving funding from a foreign power or working in collaboration with it. However, the other requirements for offences to be committed mean that those legitimate acts would not be captured. In answer to my noble friend Lord Black, I can be clear that this Bill targets wrongful activity from states, not whistleblowing —but we will be coming back to whistleblowing later in today’s session. I also hope that those comments reassure my noble friends Lord Black and Lady Stowell and, of course, the noble Lord, Lord Faulks.

I now turn to Amendments 67 to 71 on the meaning of foreign power, which were tabled by the noble Lords, Lord Marks of Henley on Thames and Lord Purvis of Tweed. The noble Lords have tabled an amendment to remove from the definition a political party which is the governing political party of foreign Government. The inclusion of governing political parties addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities are being carried out on the direction of the ruling party or the Government. We know all too well that states seeking to exert their influence or cause harm to the United Kingdom will do so through a number of different vectors, and we do not wish to create a gap in our legislation which state actors could exploit.

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

How then, if you seek to attack political parties that are effectively Governments, do you correspondingly exclude political parties that are not in any sense responsible for the activities of the Government, even though they may form a small part of such a Government? The point we made about coalitions is in point and illustrates one of the points we are concerned with, which is that, in a desire to encompass everything that ought to be encompassed, you pull into the net all kinds of fish that ought never to have been caught.

[Lord Sharpe of Epsom (Con)]

I of course understand where the noble Lord is coming from, but the point is that this relates to the activities of these political parties and those who are working for them. Therefore, I am not entirely convinced that it would be appropriate to exclude the smaller parties in, say, a coalition.

I was going to go on to explain why certain governing political parties in the Republic of Ireland have been carved out, in answer to the question asked by the noble Lord, Lord Pannick. A political party that is both the governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland is excluded from the definition of a foreign power, as noted. This exclusion is included in recognition of the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom to ensure that the provisions in the Bill do not inadvertently impact cross-border politics.

A further amendment has been tabled seeking to add corporate or other entities.

[Baroness Hayter of Kentish Town (Lab)]

Is the Minister moving off political parties? If so, he has not answered any of the questions that I posed, and I hope he is going to do so before he moves off political parties. The idea is that we are going to call in political parties—and only governing parties, although under Schedule 4 they are the ones that are excluded, not opposition ones—but other countries do not necessarily have a definition of political parties in the way that we do. In fact, until PPERA, in 1998 or whenever it was, I cannot remember, we did not have a definition of political parties or a register of them. So, in other countries that do not have them, how on earth are you going to know who is a political party?

Apart from that, there is the question I put about whether they are in opposition or in government, and what the answer is on America. If one is trying to get at agents acting on behalf of a Government, all you have to do—I used to be general-secretary of the Fabian Society—is call yourself a think tank rather than a political party, and then presumably you can do the activity. So, if this is a way of try to get at organisations that work on behalf of Governments, only calling them political parties, of which in many countries there are no definitions anyway, is, I have to say, somewhat the wrong approach. Will the Minister give me answers to the questions I posed in my contribution?

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for that. She will forgive me if I do not get involved in what is the correct, or legitimate, Government of the United States. I do not think that is for me to opine.

[Baroness Hayter of Kentish Town (Lab)]

It will be for the noble Lord or his successor to opine, because it is in the Bill. There is no secondary legislation attached to it about what the definition will be. This is Pepper v Hart. What is going to be taken is the Minister’s words at the Dispatch Box. If the Minister is saying that he cannot define which is the governing party in America, how do we know who we can meet and who we have to register?

[Lord Sharpe of Epsom (Con)]

As regards the registering point, the noble Baroness is—as the noble Lord, Lord Ponsonby, suggested—perhaps straying into the FIRS situation, which we will discuss at considerable length on Monday. I think that will deal with a number of the questions the noble Baroness has posed with regard to registration and so on. Can we come back to that on Monday, please?

As regards opining as to the Government of the United States, I choose not to do so purely because it would potentially be a political can of worms, but I acknowledge the fact that obviously there is a President who comes from a different party from the majority party in one of the two Houses.

[Baroness Hayter of Kentish Town (Lab)]

So there will be meetings that we can have now, and if—God forbid—Mr Trump wins, suddenly the parties with which we are allowed to talk will change because it is Mr Trump rather than Mr Biden. Is that really what the Minister is saying?

[Lord Sharpe of Epsom (Con)]

No, I do not believe that is particularly what I am saying. I suspect we will have to come back to this for precise definition purposes, and I am happy to commit to do so.

A further amendment has been tabled, seeking to add corporate or other entities to the foreign power definition. We believe this is unnecessary as it is already covered in the foreign power condition provision, which covers indirect links, under Clause 29(3). This explicitly provides that a person’s conduct could meet the foreign power condition if there is

“an indirect relationship through one or more companies”.

The legislation therefore covers cases where a person is receiving tasking through a company that is under the ownership, control or direction of a foreign power. It is vital that states are not able to circumvent the measures in the Bill by working through proxies to deliver harmful effects.

The noble Lord, Lord Ponsonby, asked specifically about state-owned companies and Huawei in particular. We have not included state-owned companies in the definition of a foreign power as these companies often have their own non-state objectives. Instead, the legislation captures circumstances where a person acts directly or indirectly

“for or on behalf of a foreign power”.

That includes cases where a person knows, or ought reasonably to know, that the activity they are conducting for a state-linked company is being carried out for or on behalf of the foreign power, or where they intend to benefit a foreign power. Offences may be committed by bodies corporate, including those established in other jurisdictions. In addition, the legislation provides that where an offence is committed by a company

“with the consent or connivance … or … due to any neglect”

of an officer of the company, that officer of the company may be guilty of the offence.

In answer to the noble Baroness, Lady Hayter, I have just mentioned that a number of the questions she raised and subjects she covered are more appropriately dealt with under the FIRS discussion we will have on Monday. That also applies to a number of the things raised by the noble Lord, Lord Wallace. As noble Lords know, that part of the Bill—Clauses 65 and 66 —was introduced late into the House of Commons, to which the noble Lord referred. I am sorry if the noble Lord, Lord Wallace, thinks I was frivolous as to the potential for right-wing threats to our national security. Just for the record, I am completely agnostic about from which end of the political spectrum threats are made to our national security.

Finally, noble Lords have tabled an amendment to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. It is important to note that the National Security Bill focuses on harmful conduct undertaken by a person, not the foreign power they seek to benefit. Actively excluding certain states could create an unwelcome gap in the legislation, particularly given that we know that states sometimes look to act through proxies. These amendments, therefore, could lead to us being unable to take necessary and appropriate action against harmful activities. Noble Lords will wish to note the case of Daniel Houghton, the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence services in 2010. Were NATO states to be excluded from the definition of a foreign power, cases like Daniel Houghton’s would not be captured by the offences and measures in the Bill.

For those reasons, the Government cannot accept these amendments and I ask noble Lords not to press them.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am afraid I do not accept the Minister’s idea that these things cannot be criminalised, so I will bring my amendment back on Report. I thank noble Lords for contributing to my amendment, particularly the noble Lord, Lord Black, with his expertise—which goes way beyond mine. I ask the Minister for a meeting to discuss this, because it is quite a fundamental point and bears further discussion. In the meantime, I beg leave to withdraw.