Nitrous Oxide

Lord Sharpe of Epsom Excerpts

Wednesday 15th March 2023 Lords Chamber

[Lord Young of Norwood Green]

To ask His Majesty’s Government, further to the Advisory Council on the Misuse of Drugs report Nitrous oxide: updated harms assessment, published on 6 March, what steps they are taking to prevent the sale of large canisters of nitrous oxide to the public.

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

My Lords, it is an offence under the Psychoactive Substances Act 2016 to supply or offer to supply oxide canisters of any size, knowingly or recklessly, for its psychoactive effect. I would expect police to use all available powers to crack down swiftly on illegal sellers. The Advisory Council on the Misuse of Drugs identified concerning anecdotal evidence of an increased prevalence of large canisters since 2015. We are now carefully considering its recommendations and will respond shortly.

[Lord Young of Norwood Green (Lab)]

My Lords, I must confess I am somewhat disappointed by the response from the Minister. I have here the type of canister that is the challenge that we face. I do not know if you have noticed, but these canisters now litter the countryside everywhere. This one is empty—I did not indulge—but they are a serious problem. They are meant for industrial use, but are also a serious health hazard. There is no limit to the amount that can be ingested with them, unlike the small silver ones, known as whippits, that you see around; they are really meant for inflating party balloons but are also used to get a high. You can buy the large canisters on Amazon, no questions asked. Will the Minister take urgent action to ensure that these canisters are sold to licensed traders only, and take steps to discuss with Amazon the question of putting a deposit on the canisters so that they are returned? I would like the opportunity to meet him to discuss what further action could be taken.

[Lord Sharpe of Epsom (Con)]

The noble Lord is right that the availability of larger tanks—I thank him for his example of one—is believed to have led to an increase in the amount and frequency of nitrous oxide use. In November 2018, the Government published a review of the Psychoactive Substances Act, which provided insights into the way the Act has affected the sale and use of potentially harmful new psychoactive substances. The review concluded that the open sale of new substances had largely been eliminated. After the 2016 Act came into force, 332 retailers across the United Kingdom were identified as having either closed down or stopped selling. However, I take his points on board; I am happy to meet him and will certainly take this back to the department. I should say that the report was published only on 6 March.

[Baroness Bull (CB)]

My Lords, the review to which the Minister has just referred went on to say that academic and Europol evidence identified the UK as one of the leading dark-web sources of these illegal substances. What have the Government done since that review to address this and close down these too-easy-to-access sources of highly dangerous substances?

[Lord Sharpe of Epsom (Con)]

I take the noble Baroness’s point. As I say, the recommendations from the report are still under consideration. As I have just outlined, considerable work has been done on the retail of these canisters, but I will come back when I have more to tell her, based on the review of the report.

[Baroness Berridge (Con)]

My Lords, the advisory council is obviously vital; developments in this area are very speedy, so it enables the law and government decision-making to keep pace. However, the speed of development is glacial compared to the speed of change on the internet, and it is not just substances that we ingest that cause harm but images. Could my noble friend the Minister please take the opportunity to turn to his noble friend next to him from the DCMS, to advise him that somewhere in the Online Safety Bill we need clauses to future-proof so that, as things develop on the internet, the Government have the information quickly to hand so that we can put legislation or decisions in place to stop that harm?

[Lord Sharpe of Epsom (Con)]

My noble friend Lady Berridge is right; obviously we need to future-proof legislation—and I note that my noble friend next to me was nodding sagely during her question.

[Lord German (LD)]

My Lords, the advisory committee may not have given the advice that the Government were seeking in this matter, but I hope that the Government will look very seriously at the second issue which the advisory committee reported on, which was education. Given that there are now many medical professionals, both clinical and in research, who place the risks of nitrous oxide on a par with or greater than alcohol abuse, what steps do the Government propose to take to inform the public—particularly young people —of the consequences of nitrous oxide abuse, using their experience of dealing with alcohol abuse?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a good point. A free drugs advice service from the Government, FRANK, contains information on nitrous oxide and the harm associated with taking it, such as dizziness, vitamin B12 deficiency, and nerve damage that can result from heavy long-term use. FRANK receives over half a million visits a month, with high levels of awareness and trust. User research commissioned by Public Health England has shown that 83% of 18 to 24 year-old adults are aware of this site, and that 85% of its users trust the site to provide reliable information about drugs.

[Lord Bellingham (Con)]

My Lords, further to the question from my noble friend Lady Berridge, I say that it is a question not just of the ready availability of these online vendors who are working very hard to sell nitrous oxide, but of campaigns by social media which are backing that up. Does the Minister agree that there is now an argument for moving control from the Psychotic Substances Act 2016 to the Misuse of Drugs Act?

[Lord Sharpe of Epsom (Con)]

My noble friend makes a very good point but the advisory council did not actually recommend that. It said that nitrous oxide should be kept subject to the provisions in the Psychoactive Substances Act 2016. However, as I said earlier, we are considering all the recommendations of the report, and the Home Secretary has a duty to consider advice on whether to pursue control under the Misuse of Drugs Act 1971.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, does the Minister accept that nitrous oxide is a gateway drug and may well lead to young people in particular moving on to other drugs which are even more harmful? Does he also accept that the courts and the police force find it difficult to deal with the multitude of available drugs, which are constantly changing, so there needs to be huge vigilance to try to understand the range of drugs available to our young people?

[Lord Sharpe of Epsom (Con)]

I do not have any personal knowledge of whether it is a gateway drug, but the evidence that I have seen certainly suggests that to be the case; I believe it is the third most common drug in England and Wales after cannabis and cocaine, so I suspect that the noble Lord is right. As regards vigilance, I agree; obviously we have a long-term drugs strategy to take the challenge of drug misuse very seriously. It is a 10-year strategy, significant funds have been dedicated towards it, and it includes investing significant amounts of money in an ambitious programme of drug treatment and recovery.

[Lord Berkeley (Lab)]

My Lords, can the Minister explain the legality of selling nitrous oxide in these large canisters? Are they illegal and, if so, has anybody been convicted of selling them? If they are not, is the Minister saying, “It is all right. We will welcome it for the moment and have a policy later”?

[Lord Sharpe of Epsom (Con)]

I certainly do not think I have said that, my Lords. There are legitimate uses for nitrous oxide, and we should bear that in mind. It is used in medicine, dentistry and—this may surprise noble Lords—as a propellant for whipped cream canisters. Those who supply nitrous oxide, knowingly or recklessly, where it will be used for its psychoactive effect commit an offence under the Psychoactive Substances Act 2016, regardless of the age of the buyer. That can include a maximum sentence of seven years’ imprisonment, and people are convicted under the Psychoactive Substances Act. There is no complacency here.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendment 1A in lieu.

1A: Page 36, line 15, at end insert the following new Clause—
“Meaning of serious disruption
(1) For the purposes of this Act, the cases in which individuals or an organisation may suffer serious disruption include, in particular, where the individuals or the organisation—
(a) are by way of physical obstruction prevented, or hindered to more than a minor degree, from carrying out—
(i) their day-to-day activities (including in particular the making of a journey),
(ii) construction or maintenance works, or
(iii) activities related to such works,
(b) are prevented from making or receiving, or suffer a delay that is more than minor to the making or receiving of, a delivery of a time-sensitive product, or
(c) are prevented from accessing, or suffer a disruption that is more than minor to the accessing of, any essential goods or any essential service.
(2) In this section—
(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them;
(b) a reference to accessing essential goods or essential services includes in particular a reference to accessing—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.”

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

My Lords, with the leave of the House, I shall speak also to Motion C.

Amendment 1 provides a definition of “serious disruption” which is the trigger for a number of offences and powers contained in the Bill. As I explained when this was first considered on Report, the Government do not believe that the amendment is appropriate. First, it does not read compatibly with the measures in the Bill—a point made by several of your Lordships during that debate. Secondly, it does not set an appropriate threshold for what constitutes serious disruption, which is why, on Report, the Government supported the definition proposed in the amendments tabled by the noble and learned Lord, Lord Hope of Craighead. The Government have brought an amendment in lieu to more closely align the definition with that proposed by the noble and learned Lord and to address these two issues. The new proposed threshold is rooted in case law from both the Court of Appeal and the Supreme Court. It now has the support of the other place.

The noble Lord, Lord Coaker, has tabled Motion A1, which replaces the “more than minor” threshold in this amendment with “significant”. I will paraphrase the noble and learned Lord, Lord Hope of Craighead, who, when this was debated on Report, expertly argued why “more than minor” was an appropriate threshold. There is no question that minor disruption is not only acceptable but is a constituent part of the right to protest. However, when disruption exceeds this, the police should intervene. The use of “more than” implements this concept in law, which is why the Government continue to support the formulation of the noble and learned Lord. We encourage your Lordships to support Amendment 1A.

Motion C relates to journalists. This group concerns Amendment 17, which seeks to establish a specific safeguard for journalists and bystanders during protests. It is in response to the unlawful arrest of the LBC journalist, Charlotte Lynch, and others by Hertfordshire Constabulary in October 2022. The Government are clear that the role of members of the press must be respected. They should be able to do their job freely and without restriction. However, we remain of the view that the amendment is unnecessary. The police may exercise their powers of arrest and powers to maintain public order and public safety only in limited circumstances specified in law. Therefore, there is no need whatever for carve-outs of circumstances where these powers cannot be used.

However, we recognise the strength of support for this amendment. Sometimes there is a need to send a signal as to the values and principles we stand for; this is one of those times. That is why the Government brought forward an amendment in lieu in the other place. It accepts the principle of the amendment while also minimising the risk of unintended consequences. We make it explicit that the police may still use their powers on those reporting and observing protests when it is necessary and lawful to do so. The police must still be able to exercise their powers on journalists and observers who break the law or who put public safety at risk.

Amendment 17A was supported by the other place, including by the Opposition Front Bench. I hope that it will now also be accepted by your Lordships’ House. I beg to move.

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[Lord Paddick (LD)]

My Lords, with the leave of the House, before I start, I thank all noble Lords from all sides of the House, the doorkeepers, the attendants, the security and the police officers, who have shown such kindness towards me following the sudden, unexpected and so far unexplained death of my husband. I am very grateful.

As the Minister and the noble Lord, Lord Coaker, have explained, the definition of “serious disruption” underpins the entire Public Order Bill. It is an element of many of the new offences and the trigger for the use of new draconian police powers, which we will debate in the next two groups. The police asked for clarity, as there was no definition of “serious disruption” in the Bill that originally came to us from the other place, and we joined forces with His Majesty’s Official Opposition to provide a reasoned and reasonable definition of “serious disruption” that gave clear guidance to the police—Lords Amendment 1—which was agreed by this House. The Commons disagreed with our amendment and substituted Amendment 1A as an amendment in lieu.

On the point made by the noble Lord, Lord Wolfson of Tredegar, about the problem with ambiguity around the word “significant”, the fact is that the original amendment this House passed had examples clearly explaining to the police what we meant, so that ambiguity was not there in the original amendment passed by this House.

Instead of defining “serious disruption” as causing

“significant harm to persons, organisations or the life of the community”,

which would include, for example, preventing an ambulance taking a patient to a hospital, the Government have substituted, as we have heard,

“more than a minor degree”

for “significant harm”. With the greatest respect to the noble and learned Lord, Lord Hope of Craighead, and to address the concerns of the noble and learned Baroness, Lady Butler-Sloss, I will repeat what I said on Report: on a spectrum of seriousness, “minor” is at one end and “serious” is at the other. I say that as a former police officer speaking about how the police might interpret the legislation. For example, a minor injury is a reddening of the skin, and a serious injury is a broken limb or inflicting a fatal injury. My interpretation, as a former police officer, of what is being said in the Bill is that disrupting to

“more than a minor degree”

cannot reasonably be said to be “serious disruption”; it is far too low a threshold. While I understand that the noble and learned Lord wanted to establish a threshold—the exact point at which the law would be broken—our argument is that that point is far too low. We therefore support Motion A1 in the name of the noble Lord, Lord Coaker, and we will support him if he decides to divide the House on his Motion A1.

I join the noble Baroness, Lady Chakrabarti, in saying that I am grateful to the Minister for Amendment 17A, mentioned in Motion C, which we support. It is right to protect observers of protests from being prevented from carrying out their work by the police.

Finally, I thank the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, for their kind words about my public service, but I reassure the House that this is not my valedictory speech.

[Lord Sharpe of Epsom (Con)]

My Lords, again, I thank all noble Lords for participating in this debate and for the scrutiny they continue to bring to bear on these important measures.

Before I get on to the amendments, the noble Lord, Lord Coaker, asked about the Government’s intentions for Section 73 of the PCSC Act. For the benefit of the House, Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act contain delegated powers which allow the Secretary of State to amend the definitions of

“serious disruption to the life of the community”

and

“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession”

for the purpose of Sections 12 and 14 of the Public Order Act 1986.

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Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendments 6, 7, 8, 9 and 36 to which the Commons have disagreed for their Reasons 6A, 7A, 8A, 9A and 36A.

6A: Because it is appropriate for the police to be able to exercise the stop and search powers contained in the clause removed by the Lords Amendment.

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36A: Because the Amendment is consequential on Lords Amendment 6 to which the Commons disagree.

[Lord Sharpe of Epsom (Con)]

My Lords, your Lordships’ Amendment 6 and the related consequential amendments remove the power to stop and search without suspicion from the Bill. While I recognise the strength of feeling expressed by noble Lords when considering these amendments during Report, the Government cannot accept the removal of the suspicionless stop and search powers from the Bill. The other place has also disagreed to these amendments for their reasons 6A, 7A, 8A, 9A and 36A. I therefore respectfully encourage the noble Lord, Lord Paddick, to reflect on Motion B1, which seeks to overturn this wholly and which I do not think appropriate.

Suspicionless stop and search is a vital tool used to crack down on crime and protect communities, and we see it as entirely appropriate that these measures be extended to tackle highly disruptive protest offences. These are much needed proactive powers. Large protests are fast-paced environments where it is difficult for the police to reach the level of suspicion required for a suspicion-led search. The police should not have so sit by idly where there is a risk that someone will commit a criminal offence, and this is why suspicionless stop and search powers are necessary.

This view is shared HMICFRS, which found that suspicionless search powers would act as a deterrent and help prevent disruption and keep people safe. I want to be clear that the power to conduct a suspicionless search does not mean that anyone at a protest will be at risk of being searched without suspicion. The vast majority of protests in this country are peaceful and non-disruptive. These powers will be used only in the exceptional circumstances where it is likely that people at a protest will go on to commit criminal offences that cause serious disruption to others.

I also want to assure your Lordships, as I have sought to do throughout the passage of this Bill, that the safeguards on existing stop and search powers will apply to these powers, both for suspicion-led and suspicionless stop and search, and that includes body-worn video and PACE codes of practice. The Home Office also publishes extensive data on the use of stop and search to drive transparency. We expect the police to operate in a legitimate, fair and transparent manner, which includes decisions surrounding their use of this power.

The noble Lord, Lord Coaker, has tabled Motion B2. I want to remind the House that the power to conduct a suspicionless stop and search in a public order context will only be used in limited cases where a police officer of or above the rank of inspector reasonably believes that protest-related offences will occur and therefore authorises its use. In such cases, suspicionless stop and searches are limited to a specified locality for a specified period, but no longer than 24 hours. This can be extended for a further 24 hours to a maximum of 48 hours by an officer of or above the rank of superintendent, but it cannot be in place for more than 48 hours.

The reason why we have set out the thresholds and time limitations in this way is that we wanted to keep the legislation as consistent as possible for officers who will be using suspicionless stop and search powers. The amendments put forward by the noble Lord, Lord Coaker, would set a higher authorisation threshold for suspicionless searches than if officers are searching for a weapon, and limit the initial window that officers would have to use these powers, which has the potential to confuse officers with the well-established Section 60 legislation that we have discussed previously.

Suspicionless stop and search can be authorised only if specific protest-related offences are likely to be committed. These are the offences in this Bill and the offences of obstructing the highway and public nuisance. As the offence of public nuisance is committed so frequently by those who use disruption as a protest tactic, it is nonsensical to remove it from the list of relevant offences. Doing so would completely undermine this power.

The Government recognise that communication is a fundamental element of building trust and confidence between the force and the community it serves. As good practice, most forces already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and the background of the issue. Therefore, although I am sympathetic to the final proposed new subsection in the proposed amendment, which would establish in statute a requirement for the force to communicate when the powers are used, I do not think we want to introduce an inconsistency between the Section 60 legislation framework, which does not carry a communication requirement, and the proposed powers in the Bill. I therefore ask that your Lordships’ House does not insist on these amendments.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

I must inform the House that if Motion B1 is agreed to, I cannot call Motion B2 by reason of pre-emption.

Motion B1 (as an amendment to Motion B)

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have partaken in another fruitful debate. It has long been the Government’s view that suspicionless stop and search powers are necessary and much-needed proactive powers for tackling highly disruptive protest offences. This view remains unchanged.

I will endeavour to answer some of the points that were raised. First, on why, in its report into the policing of protests HMICFRS concluded:

“On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe”.


It is worth reiterating that last point “making the public safe”.

On the disproportionate use of the powers with people of colour, nobody should be stopped and searched because of their race. Extensive safeguards, such as statutory codes of practice and body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interests of transparency and will expand this publication to the use of the new powers provided for in this Bill.

On the subject that was just under discussion about the appropriate level of officer who may authorise a suspicionless stop and search, I take the points that noble Lords have made about Section 47A, but this replicates existing powers within Section 60 of the Criminal Justice and Public Order Act 1994, as I said in my opening remarks. Wherever possible, to ensure consistency, officers of inspector or higher may give an authorisation for up to 24 hours. Any extension must be made by an officer of superintendent rank or higher and no authorisation can last for more than 48 hours.

With regard to the geographical extent of a no-reasonable-suspicion stop and search order, it is for police forces to determine how and, indeed, whether to communicate the geographical extent of a search order under Section 60. This will also be the case for the new suspicionless powers in the Bill. Forces are no longer required to communicate that a Section 60 order is in place, but many continue to do so, where they judge it operationally feasible. Obviously, that in itself helps to deter criminals and enhance community trust and confidence. It is common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.

I do not think there is a great deal more I can usefully say or add. I therefore invite the noble Lords, Lord Coaker and Lord Paddick, not to press their amendments.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate, particularly the noble Lord, Lord Coaker, for his comprehensive and convincing explanation of his Motion B2, and the noble and right reverend Lord, Lord Sentamu, who, from his personal experience and from the experience of the people he works with and has talked to and whose experiences he has shared, has said that we should listen very carefully. I thank the noble Lord, Lord Hogan-Howe, who feels that Clause 11 should not be part of the Bill but, regrettably, as I said before, probably accepts, as do I, that constitutionally we cannot take it out at this point.

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Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 17 and do agree with the Commons in their Amendment 17A in lieu.

17A: Page 19, line 22, at end insert the following new Clause—
“Exercise of police powers in relation to journalists etc
(1) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on a protest.
(2) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on the exercise of a police power in relation to—
(a) a protest-related offence,
(b) a protest-related breach of an injunction, or
(c) activities related to a protest.
(3) This section does not affect the exercise by a constable of a police power for any purpose for which it may be exercised apart from this section.
(4) In this section—
“injunction” means an injunction granted by the High Court, the county court or a youth court;
“police power” means a power which is conferred on a constable by or by virtue of an enactment or by a rule of law;
“protest-related breach”, in relation to an injunction, means a breach which is directly related to a protest;
“protest-related offence” means an offence which is directly related to a protest.”

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken to Motion C. I beg to move.

Motion C agreed.

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendments 20, 21, 23, 27, 28, 31, 32 and 33 and do agree with the Commons in their Amendments 33A and 33B in lieu.

33A: Clause 20, page 24, line 19, leave out sub-paragraphs (iii) to (v)

33B: Clause 20, page 24, line 31, at end insert—
“(c) P’s conduct in relation to each occasion mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”

[Lord Sharpe of Epsom (Con)]

My Lords, your Lordships’ Amendment 20 removes Clause 20—“Serious disruption prevention order made otherwise than on conviction”—entirely from the Bill. The Government listened carefully to the concerns expressed by this House regarding the conditions that could be considered when applying an order to an individual. That is why the Government have accepted the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich. Making this change means that an order could be given only on the basis that an individual has been convicted of a protest-related offence or been found in contempt of court for a protest-related breach of an injunction on at least two occasions. I believe that this is the issue with which your Lordships were most concerned, so we listened and we acted.

We still believe it is important that the police have the opportunity to apply for an order at a later point following conviction. Without this measure, it would not be possible to place an order on individuals who have already been found guilty of multiple protest-related offences until they reoffend and are convicted of yet another offence. Removing the ability to impose an SDPO otherwise than on conviction undermines this proactive element. That is why we disagreed with Lords Amendment 20 and tabled amendments in lieu, which reintroduce this clause but tailor the list of conditions, so that upon application an order can be made only where individuals have been convicted of protest-related offences or breaches of injunctions, thereby aligning this with the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich.

There has been some confusion about the nature of this clause, quite possibly due to its title, which should more accurately be defined as “Serious disruption prevention order made on application”. I assure noble Lords that we will look to make that change following the passage of the Bill.

For the avoidance of doubt, updated Clause 20 will not allow an order to be applied to an individual without a conviction. It will simply allow for an order to be made by a magistrates’ court on application by a relevant chief officer of police at a later point following two or more convictions.

The noble Lord, Lord Ponsonby, has tabled Motion D1, which, with respect, I cannot support. To be subject to a SDPO, a person must be convicted of two protest-related offences or found in contempt of court for breaching two protest-related injunctions. Being found guilty by a court for these acts inherently means that their conduct was beyond a genuine expression of their right to protest. Additionally, it creates an inconsistency between this provision and SDPOs made on conviction, which have already been accepted by Parliament. With that in mind, I respectfully ask that the noble Lord does not move his Motion.

Motion D1 (as an amendment to Motion D)

Moved by

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[Lord German (LD)]

My Lords, we on these Benches accept that the amendments have been made in the Commons but are still concerned that they do not go far enough. Taking the matter back to the beginning, the bar set on which people can be convicted or the orders can eventually be issued is based on the balance of probabilities. That matter was the source of a great deal of discussion in this House. A bar has been set which is basically non-evidential, because no evidence has to be proven of what has happened. Any amendments which would raise that bar just above a zero threshold are to be commended.

Having made the orders less draconian and brought them in line with the terrorism prevention and investigation measures, the SPDOs are to be imposed on protesters, taking away their rights to freedom of speech and freedom of expression, on the balance of probabilities. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported, in its review of public order policing, that it doubted that these orders are workable, even with a breach of the order occurring. A person attending a protest peacefully, in breach of an SPDO, is unlikely to be treated by the court in the same manner as a potential terrorist. Courts would look at the effect of an order and measure that against the breach of human rights legislation, and, in the end, the effect of an order breaching a person’s human rights could well override the effect of the order.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights, but only if a court was satisfied, on the balance of probabilities, that depriving people of their human rights on the weakest of evidential tests was sufficient. Therefore, there is an expectation that the courts would use a breach of human rights legislation to override the effect of the SPDO.

In seeking to raise the bar from zero—the bar is sitting on the floor, as no evidence is required—these amendments at least provide an evidential activity. They require an officer to have observed the evidence behind the requirement. The requirement in the amendments before us may not be sufficient, but it certainly lifts the bar, in relation to evidence, off the floor. In fact, we need to help police officers. Police officers may be faced with situations without evidence, such as listening to somebody’s hearsay about a protester. Alternatively, they may have it in their mind that possible action will take place if they assume that a protester, who is standing peacefully and undertaking a peaceful activity, could well jump across the road, lie on the ground and stop the traffic. In those cases, they would not have any evidence that the person was about to conduct themselves in a dangerous manner, so it would be effective to introduce provisions for that. This set of amendments could provide for those matters, but, as I have said, in a very limited way.

As the noble Lord will not press his amendment to a vote, it seems to us that the Government have to consider how the courts will deal with these matters when they are placed before them, when we have human rights legislation guaranteeing freedom of speech, freedom to join together with others and freedom of expression. When all those rights are being harmed, what will the courts say and are the Government sufficiently ambitious that they think that their evidence based on these rules will give the human rights opinion any credence whatever?

[Lord Sharpe of Epsom (Con)]

My Lords, again, I am grateful to both noble Lords for their thoughtful and considered contributions to this debate. As I have already detailed, the Government listened carefully to your Lordships’ concerns regarding the serious disruption prevention order measures. Orders will now be applied only where individuals have been convicted of protest-related offences or breaches of protest-related injunctions on at least two occasions.

The noble Lord, Lord German, argued that serious disruption prevention orders contravene the European Convention on Human Rights. They do not. The right to protest is fundamental and despite sensationalist claims such as that, that will not change. These orders will ensure that individuals who deliberately cause serious disruption more than twice will face justice. Articles 10 and 11 of the ECHR set out that everyone has the right to freedom of expression, assembly and association. However, these rights are not absolute and must be balanced with the rights and freedoms of others.

I hope your Lordships will be satisfied that the Government have responded with a very significant offer that addresses the key concerns expressed throughout the passage of this Bill. The Bill will better balance the rights of protesters with the rights of individuals to go about their daily lives free from disruption and address the ever-evolving protest tactics we have seen employed by a selfish minority of protesters. Blocking motorways and slow walking in roads delays our life-saving emergency services, stops people getting to work and drains police resources. The British people are rightly fed up with it and are demanding action from their lawmakers.

It is time for this Bill to become law. I thank the noble Lord for saying that he will withdraw his Motion.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the Motion.

Manchester Arena Inquiry: Volume 3 Report

Lord Sharpe of Epsom Excerpts

Tuesday 14th March 2023 Lords Chamber

[Lord German (LD)]

My Lords, I echo the sentiments at the end of the contribution from the noble Lord, Lord Coaker. I too welcome the third volume of the inquiry, and thank Sir John Saunders and his team for all the work they have put in.

We must remember that our thoughts must be with the families, friends and all those affected by this atrocity. Twenty-two innocent people lost their lives, hundreds more were injured, and many thousands are emotionally and physically scarred for the rest of their lives. Those responsible for this terrible, cruel and merciless act are the bomber, his brother, those who radicalised them, and those who provided them with support. We condemn their actions. We must take steps to ensure that everything possible is done to make such a set of acts impossible in future.

The inquiry has shone a light on what must be achieved to do just that. We have to face up to the shortcomings which the inquiry has exposed, no matter how hard a reading they make, and put in place the appropriate safeguards. I welcome the Government’s Statement about how they are going to address these matters, and that they intend to press forward with all the recommendations raised by the inquiry. I will come to the closed chapters in a moment. However, much more detail is needed if this House, the public and, most importantly, those directly impacted by the atrocity are to be satisfied that everything possible is being done.

I have a number of questions for the Minister, and I will try to avoid repeating those of the noble Lord, Lord Coaker. First, the inquiry report contains closed chapters and recommendations, so can the Minister tell the House whether the Government have received those closed parts? If they have received them, can he say whether the recommendations within them will be restricted to selected Ministers, or, as I hope, that there can be engagement with the ISC, even if it is in camera, so that there will be an extent of knowledge and understanding of these issues wider than a very small group of people? As long as there is mystery, there will be misunderstanding.

Secondly, on Martyn’s law, I welcome the intention to introduce the legislation. We are promised the legislation “in the spring”. I am told that we are now, officially, “in the spring”, so when will the Government produce the draft legislation for us to scrutinise? I obviously recognise that there is difficulty in introducing the legislation itself because of parliamentary timetabling, but producing the draft legislation, which has been promised, is in the Government’s hands. I will try to help the Minister with the wording “in the spring” by asking: will it be introduced before Easter, before the Coronation, or in the official period called “the summer”?

My third question is on the issue of workforce pressure. One of the things that was quite clear from the inquiry report was that there were staff shortages, particularly in the north-west of England. If the Government intend to follow through on all these recommendations, how do they intend to meet the shortfall in personnel identified by the inquiry?

I turn to the countering extremism strategy. This was declared out of date in 2018 by the relevant commissioner. What steps are the Government taking to revise and publish a new strategy? In that context, are Prevent, Contest and the Shawcross review now being seen together as a whole? When can we expect to see their results being addressed? Will the conclusions be drawn together into a revised countering extremism strategy package, so that all the thoughts about the way forward are contained in a single document?

Finally, the Secretary of State responding in the House of Commons repeatedly said that she wanted to focus on security, not political correctness. I may be slightly dim on this matter, but can the Minister tell us what political correctness she was talking about? In the end, we all share the ambition to ensure that the people who have been most affected by this—the families, the friends and everyone else who has been scarred by this—understand that we will do everything we can to prevent it. I look forward to the Minister’s answers.

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

I thank both noble Lords for their comments and echo the remarks made by the noble Lord, Lord Coaker. As the report made very clear, responsibility for the events of 22 May 2017 lies with Salman Abedi and his younger brother, Hasham Abedi. That is not to say that we should not also remember the victims and their families; it was a particularly awful tragedy and I am sure that all noble Lords’ thoughts and sympathies are with them.

Like the noble Lord, Lord Coaker, I congratulate the intelligence agencies. As he pointed out, they have stopped 37 attacks in recent years, as was made clear, and frankly they deserve our admiration for that, notwithstanding any particular failures or problems that have been identified through Sir John Saunders’ report. While I am thanking people, I also, obviously, thank Sir John for his comprehensive report, which has considerably helped in forming our response—not just the Government’s response—to such events and how we deal with them going forward.

I will do my very best to answer all the various questions that were asked. Obviously, if I miss anything inadvertently, I will commit to write. Both the noble Lord, Lord Coaker, and the noble Lord, Lord German, asked about the Statement. Volume 3 has been published and the chairman is determined to monitor recommendations that have been made with the ISC. Volume 3 “open” has only just been published; Volume 3 “closed”, to my knowledge, has not yet been shared with the Government. The Government will carefully consider the report’s findings and recommendations in full and consider any recommendations Sir John makes about the role the ISC can play, in light of the memorandum of understanding that exists between the committee and the Government, which we have discussed many times in the last few days. As noble Lords will be aware, the MoU is available on the committee’s website.

Work on Martyn’s law, which both noble Lords asked about, is progressing at pace and legislative proposals will be taken forward when parliamentary time allows. In the interim—I suppose this the option D that that noble Lord, Lord German, did not identify—we will be publishing a draft Bill in this parliamentary Session. I cannot say more than that yet. I appreciate that it has been several years since the attack, and while we accept that we have to deliver this as quickly as possible, we need to develop proposals that realise effective outcomes and truly make the public safer, and to develop appropriate and proportionate provisions which consider the impacts on the premises that will end up being in scope.

The noble Lord, Lord Coaker, asked about prisons and prison visits and the fact that Salman Abedi was able to visit a particular character in prison when he was a terrorist offender. The man’s name was Abdalraouf Abdallah. Abdallah was a category B prisoner and this was arranged through the standard visits process. Under the new approved contact scheme, we are enhancing checks on visitors and communications linked to certain offenders, including tagged offenders, regardless of their categorisation.

The noble Lord, Lord Coaker, very sensibly if I may say, quoted the Spectator, which I was delighted to hear from the opposite side of the House, in referencing the 7/7 inquiry. In effect, he was asking what was restricted from the final report, and whether the Government are effectively hiding anything. The answer, of course, is no. The inquiry was rigorous, evidence-based and had access to every bit of information that MI5 and the police held that was relevant to the attack. It was established for the very purpose of ensuring that information that was national security-sensitive could be fully considered as part of the judicial investigative process. The nature of MI5 and counterterrorism’s police work means that a great deal of what they do and how they do it has to remain secret. The chair acknowledged that. He said that revealing details of how they operate would hand our adversaries—in this case, terrorists—an advantage that would impact the UK intelligence community’s ability to keep the country safe.

MI5 and counterterrorism policing gave as much evidence as they could in public, and it was for the chair to determine what was or was not made public. He was clear that he would make his own judgments on this and said that he would

“not allow the proceedings to be ‘stage managed’ by the Security Service”,

Greater Manchester Police or others, and that he would not

“act as a rubber stamp”

when taking decisions on restriction orders. That is a pretty clear statement that he certainly conducted his inquiries in the most robust way that he could, which was certainly appropriate to the circumstances, based on the national security considerations that he identified.

On the video that was published, I am not as familiar with the Online Safety Bill as perhaps I ought to be, so I shall reserve judgment on that—but I certainly hope that it would be taken into account, and I shall most certainly also make sure that my colleagues in the relevant department are aware of the noble Lord’s request.

On inquests and the various changes that have been made or considered, I appreciate that it is a difficult problem. It is probably not for me to comment on the nature of coroners’ inquests and what have you. All I can say is that the law was carefully looked at, and it was decided that it would not be appropriate to change it in these circumstances. I think that is fair, but I appreciate that it is not the message that the families want to hear. I feel for them, but I also understand the broader context in which that question was asked.

On resources, we have invested heavily in counter- terrorism. The new Counter Terrorism Operations Centre was announced in 2021, which brings together partners from counterterrorism policing, the intelligence agencies, the criminal justice system and other government agencies. That will allow minute-by-minute collaboration between teams in the police and MI5. I hope that goes some way to answering the concerns of the noble Lord, Lord German, about resourcing. It is adequately resourced with substantial amounts of money. From memory—my papers are in a bit of a mess—I think that the number is about £370 million over the next couple of years. It is definitely going to improve cross-agency communication, which—to bring it back to the point that the noble Lord, Lord Coaker, made—was perhaps what Sir John meant when he talked about significant failures.

I have read a large amount on this subject, and I say that the judgments of security officers are obviously finely calibrated, and they are taking into consideration a number of factors. Perhaps there were failings and they need to reflect on those failings—and MI5 has been very candid about making it clear that it holds itself accountable for this. But it is important to bear in mind that these are people making very careful judgments based often on flimsy evidence. We should take that into account when considering what they do and how they do it.

The noble Lord, Lord German, asked me what we were doing on Prevent. Of course, as Sir John mentioned, Prevent is not necessarily something that Salman Abedi would have been referred to—and, if he had, Sir John also acknowledges that it may not have made any difference. As the noble Lord will be aware, we also published the report on Prevent relatively recently. All the recommendations and considerations in that report are being carefully considered in the Home Office, and I am sure that we will have much more to say on that in due course. I think that I have answered all the questions.

[Lord German (LD)]

Perhaps the Minister could tell us about the “political correctness”.

[Lord Sharpe of Epsom (Con)]

I am sorry, but I have absolutely no idea what my right honourable friend the Home Secretary was referring to. I could speculate, but I would prefer not to.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, volume 3 of the Manchester Arena inquiry is really hard to take in, because it is shocking to hear the director-general of MI5 apologising for not preventing what seems to have been a preventable attack, even though of course the full blame for the atrocity lies with Salman Abedi. But in terms of learning lessons, one confusion that the Minister may be able to clarify is that Sir John says that he does not blame any of the educational establishments that the bomber attended, yet still concludes that more needs to be done by education providers and says that Abedi should have been subject to Prevent. I do not understand why. Does not that distract from the fact that a radical Islamist operated in plain sight of security forces post education and was not stopped?

Just to follow on about Prevent and whether we can trust it, I was glad that the Statement referenced William Shawcross’s review of Prevent, which admits that we underestimated the threat of Islamist terrorism for fear of, for example, being called Islamophobic—maybe that is part of the political correctness point. There was conflation of that kind of threat with views labelled extremist. Can the Minister reflect on how unhelpful it is at the moment to label a wide range of citizens as Nazis or far right—everybody from anti-ULEZ protesters to those worried about small boats—and that this might water down our official vigilance of security and the threat of radical Islam, in very unhelpfully labelling everybody as extremists?

[Lord Sharpe of Epsom (Con)]

The noble Baroness raises a good point. I sometimes think that the speed with which polar opinions are voiced in this country is unhelpful to sensible public debate. She makes her point well, particularly as regards the frequent application of the word “Nazi”, which is rarely appropriate in my opinion. As regards the education system, I take Sir John’s opinions at face value and have little more to add, I am afraid.

[Baroness Brinton (LD)]

My Lords, I want to pick up on the point raised by the noble Lord, Lord Coaker, about victims, what they have been seeking from the inquiry and the balance with the inquest. I heard the Minister talk about the closed chapters not being appropriate. However, there are mechanisms to help the survivors and the families to get closure.

I want to ask two tangential questions and if the Minister does not have answers now, I am more than happy to receive them in writing but they are significant. We have been promised a victims Bill for some time. There was a draft Bill, but we have been waiting for that and it is probably five years overdue. It would be helpful if he could give us a date for when Parliament will look at that.

The other thing that worries me is that I had hoped on the publication of the third part report to hear the voice of the Victims Commissioner. We do not have one. Dame Vera Baird left her post on 30 September last year. Applications were sought in August and the period for them closed on 10 October. The panel sift was on 15 December and there is total silence. The role of the commissioner in helping to hold inquiries and inquests to account, and supporting families, particularly in unusual incidents, is vital. When will there be a new appointment for Victims Commissioner?

[Lord Sharpe of Epsom (Con)]

I am afraid that I will disappoint the noble Baroness. I have absolutely no idea when the victims Bill is likely to arrive in Parliament. I will endeavour to find out and write, if I can, with any further information. As regards the Victims Commissioner, I cannot answer. I should reiterate my sympathy for the victims in this case, and I say from a personal point of view that I cannot necessarily see what difference having a Victims Commissioner would have made to their experience. It was going to be awful and tragic, whatever the outcome. I am sure that nothing can take that pain away.

National Security Bill

Lord Sharpe of Epsom Excerpts

3rd reading
Monday 13th March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the Bill be now read a third time.

[The Lord Privy Seal (Lord True) (Con)]

My Lords, I have it in command from His Majesty the King and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the National Security Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Clause 14: Foreign interference: meaning of “interference effect”

Amendment 1

Moved by

[Lord Sharpe of Epsom]

1: Clause 14, page 13, line 10, leave out from “department” to end of line 12 and insert—
“(aa) a Northern Ireland Minister, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland, a person appointed as a junior Minister under section 19 of the Northern Ireland Act 1998, a Northern Ireland department or the Executive Committee of the Northern Ireland Assembly,(ab) the Scottish Ministers or the First Minister for Scotland,(ac) the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Government, or”Member's explanatory statement
This amendment and Lord Sharpe’s other amendments to clause 14 clarify the persons whose decisions are caught by clause 14(1)(d), and are needed to avoid giving a meaning to the terms “Scottish Ministers”, “Welsh Ministers” and “Northern Ireland Minister” that is different to the meaning of those terms given in the devolution Acts.

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

My Lords, as I set out at Second Reading, the first responsibility of any Government is to ensure the safety of their citizens. National security is at the forefront of this Government’s agenda, and that is why the passing of this Bill is so important. It gives us a new toolkit to tackle those state actors who threaten the safety and security of the United Kingdom. By listening carefully, and working closely with your Lordships through the passage of this Bill, we have created legislation which is stronger, more targeted and shows the importance of the scrutiny that this House provides.

We have made a range of changes to this Bill since its introduction, such as significantly tightening Part 1 in response to concerns relating to journalistic freedoms. We have amended the “ought reasonably to know” test to put it beyond doubt that individuals would not be caught if they acted unwittingly or without genuine knowledge as to the effect of their conduct. Further, we have focused the political tier of the foreign influence registration scheme more explicitly on foreign powers, providing us all with more information about the scale and nature of foreign political influence in the United Kingdom. We have also, under Clause 30, created a targeted defence available to UKIC and the Armed Forces for the extraterritorial offences under Part 2 of the Serious Crime Act 2007 in specific circumstances, replacing the previous approach of disapplying those offences.

I also note that the Government will bring back the sensible amendment of the noble Lord, Lord Anderson, to restrict the defence to intelligence activity of the Armed Forces, during Commons consideration of these amendments. We have extended the oversight provisions which were included in Part 2 on introduction of the Bill to cover Part 1 as well. We have also amended Schedule 3 to the Counter-Terrorism and Border Security Act, so that the statutory oversight for those powers will now be the responsibility of the new independent reviewer of national security legislation, ensuring that the oversight of all state threats provisions is in one place. The Government recognise the importance of independent scrutiny, and I know noble Lords welcome the inclusion of a new reviewer for the Bill.

I shall now speak briefly to the minor and technical amendments we have tabled today. Together, these amendments clarify definitions related to decisions of the devolved Administrations in Clauses 14(4)(a) and 71(3)(b) for the offence of foreign interference and the political influence tier of FIRS. These amendments will also clarify which officeholders in Scotland and Wales to whom a communication is sent are caught by Schedule 14 as set out in Clause 71(2)(a). I want to provide some context to these changes. We took the opportunity on Report in the Lords to clarify the drafting so as to ensure our policy intention in relation to government decisions was clear on the face of the legislation. We replaced the phrase

“a decision of the government of the UK”

through Amendments 50 and 118, with

“a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975), a United Kingdom government department”.

In doing so, we identified that the definitions did not fully reflect the decision-making powers of the devolved Administrations and their Ministers, but we wanted to make sure we got this drafting right, so we have worked closely with our colleagues in the devolved Administrations before tabling these amendments. Amendments 1 to 8 achieve the same effect as those tabled on Report mentioned above.

Amendments 1 and 4 relate to drafting changes for Clauses 14 and 71 respectively. They contain revised definitions for Scotland, Wales and Northern Ireland to ensure parity for all Governments within the United Kingdom. Amendments 2, 3, 5 and 6 are consequential amendments flowing from Amendments 1 and 4. Amendments 7 and 8 relate to the definitions in Schedule 14, which covers those officeholders to whom communication is caught under Clause 71(2)(a). It is vital that the UK is able to promote transparency within the political lobbying arena and tackle those who seek to interfere in our democracy at every level and in every part of the United Kingdom. That is why these amendments are so important, and I ask noble Lords to support their inclusion in the Bill.

Finally, in terms of tabled amendments, there is also a change to the Long Title of the Bill to reflect the changes made on Report to the foreign influence registration scheme. I beg to move.

[Lord Balfe (Con)]

My Lords, I briefly thank the Minister. I have heard from the stiftungs that we intervened on behalf of, and they thank the Minister for the movement that has happened and look forward to working closely with us in the future. I think it is as well to place these thanks on the public record.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

2: Clause 14, page 13, leave out lines 37 and 38
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 14(4).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

4: Clause 71, page 52, line 5, leave out from “department” to end of line 6 and insert—
“(ii) a Northern Ireland Minister, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland, a person appointed as a junior Minister under section 19 of the Northern Ireland Act 1998, a Northern Ireland department or the Executive Committee of the Northern Ireland Assembly,(iii) the Scottish Ministers or the First Minister for Scotland, or(iv) the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Government,”Member's explanatory statement
This amendment and Lord Sharpe’s other amendments to clause 71 clarify the persons whose decisions are caught by clause 71(2)(b), and are needed to avoid giving a meaning to the terms “Scottish Ministers”, “Welsh Ministers” and “Northern Ireland Minister” that is different to the meaning of those terms given in the devolution Acts.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

7: Schedule 14, page 186, line 33, leave out from “Minister” to end and insert “, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland or a person appointed as a junior Minister under section 19 of the Northern Ireland Act 1998.”
Member's explanatory statement
This amendment clarifies which office-holders in Northern Ireland, to whom a communication is sent, are caught by Schedule 14, and is consequential (in part) on Lord Sharpe’s amendment to clause 71(5).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

9: Title, line 4, leave out “principals” and insert “powers”
Member's explanatory statement
This amendment to the long title is consequential on amendments made to Part 4 of the Bill on Report.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

That the Bill do now pass.

[Lord Sharpe of Epsom (Con)]

My Lords, I wish to express my sincere gratitude to all noble Lords across the House for their interest in this Bill and for their valuable contributions and co-operation so far. Debate has been consistently informative and constructive. I am extremely grateful for the diligent approach that noble Lords from across the House have taken to ensuring that this vital legislation has received full scrutiny ahead of returning to the other place.

I am particularly grateful for the positive engagement and support of various noble Lords. From the Benches opposite, I am grateful to the noble Lords, Lord Coaker, Lord Ponsonby and Lord West; from the Cross Benches, I am grateful to the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Evans, Lord Anderson and Lord Carlile; from the Liberal Democrat Benches, I am grateful to the noble Lords, Lord Purvis and Lord Marks; and I am also grateful to my noble friends Lady Noakes and Lord Leigh. I hope all noble Lords will join me in thanking the Bill team, policy teams and legal teams in the Home Office and the Ministry of Justice for their hard work in getting the Bill to its current position. They worked phenomenally hard, particularly in relation to FIRS. It is always invidious to single out anyone in particular, but I would very much like to thank the following: Emer Smith from my private office, and Laura Weight, Jack Joseph, Sebastian Graves Read, Grace Bennett, Joe Marshall, Grace Lucas, James Dix and, last but by no means least, Louise Holliday from the Bill team.

I also place on record my thanks to our law enforcement and intelligence agencies, both for their contributions to this Bill’s development and for their enduring work in keeping us all safe every day. It is vital that they have the tools they need to fulfil such a challenging task. The measures in the Bill seek to ensure they are well equipped to tackle the wide range of modern threats that we face in the UK today. I beg to move.

[Lord Coaker (Lab)]

My Lords, I start by thanking the Minister for his constructive engagement, along with his colleagues, the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Murray, and others, including his Bill team. The Bill has had significant changes made to it, showing the way this Chamber can improve legislation. That can happen only when a Minister and the Government listen. All of us, I think, appreciate the way the Minister has engaged and made significant changes to the Bill to improve it. We are all grateful to him for that.

I also pay due respect to the contributions of many noble Lords across the House. I pay my respect to the noble Lord, Lord Anderson, who we have just heard from on the previous group of amendments, and the noble Lord, Lord Carlile, who I am pleased to see in his place. I think the contributions from the noble Lords, Lord Alton, Lord Hogan-Howe and Lord Pannick, have been significant and have helped to improve the Bill.

The Minister paid tribute to the intelligence and security services, as we all do, because we all have an interest in the security of our nation. We should note that the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, have attended virtually the whole of the proceedings on this Bill. That says everything about the contributions they have made, but also it also sends a signal to the intelligence and security services to know that two former directors-general have spent all their time contributing to the Bill and advising people both in the Chamber and outside of it. That is of huge significance, not only to this Chamber but to our country. They deserve recognition for that.

I also thank my noble friends Lord West and Lady Hayter for their contributions throughout the Bill, which have helped our thinking as well. I thank my noble friend Lord Ponsonby for his—as I often say now—calming support to my more excitable personality. That helps me enormously in more ways than you can imagine. I also thank—I know they are not here—the noble Lords, Lord Purvis and Lord Marks, for their input, which helped to improve the Bill.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I hope the Chamber will indulge me. I forgot to thank Ben Wood, who is our adviser. I apologise to him for that.

[Lord Sharpe of Epsom (Con)]

While the House is indulging, I also forgot to thank my colleagues, my noble friends Lord Murray of Blidworth and Lord Davies of Gower, so I would like to place that on record. I also thank my noble and learned friend Lord Bellamy at the Ministry of Justice.

Bill passed and returned to the Commons with amendments.

National Security Bill

Lord Sharpe of Epsom Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

87: Clause 64, page 45, line 18, after “out” insert “relevant”
Member’s explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.

--- Later in debate ---

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

My Lords, the amendments in this group clarify the intent of the enhanced tier of the foreign influence registration scheme —FIRS. They ensure the tier remains proportionate, while achieving its national security objectives. FIRS was recommended by the ISC in its 2020 Russia report, and the Government committed in their response to bring forward such a scheme.

The enhanced tier of FIRS is a targeted regime, allowing the Secretary of State to require the registration of arrangements with specified foreign Governments or entities subject to foreign power control where she believes it is necessary to protect the safety or interests of the United Kingdom. The scheme will play a significant role in the deterrence and disruption of state threats activities by those countries, and entities linked to them, which are of greatest concern.

We know that these states will make use of a whole-of-state approach to covert activities, not just relying on traditional routes of intelligence organisations and undeclared agents. FIRS will be essential to gaining a greater understanding of the scale and nature of activity being undertaken for countries and their proxies that pose the greatest risks to UK interests and national security. The penalties for non-compliance will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through specified entities. It forces them to choose between registering openly or facing prosecution should their activities be known to the intelligence community. Finally, it offers potential for earlier disruption of state threats activity, where there is evidence of a covert arrangement between a person and specified foreign power or entity, but it is not yet feasible to bring charges for a more serious state threats offence.

Government Amendments 89 and 100 make clearer that the Secretary of State can narrow the activities requiring registration under this tier. This will allow us to tailor the registration requirements to the threat posed by the country or entity being specified.

I turn now to government Amendments 95, 104, 125 and 133 and supporting amendments. These amendments make changes to ensure that a proper provision is made for offences committed by those in unregistered arrangements, and employees and subcontractors who are carrying out activities under those arrangements, in both tiers of the scheme. The Government do not wish to unfairly criminalise those who reasonably believe an arrangement is registered and have taken all reasonably practicable steps to check that it is. This is particularly the case with employees of an entity which has made an arrangement with a foreign power or specified person, or for subcontractors carrying out activities under arrangements.

These amendments seek to address this issue by enabling a person—for example, an employee—to avoid committing an offence where they can demonstrate that they took all steps reasonably practicable to determine whether the activities were registered, and they reasonably believed that the activities were registered. We consider that in practice this will mean checking the public register or receiving evidence of registration from their employer in the form of confirmation from the registration portal.

Finally, government Amendments 147 and 151 also modify the individuals to whom an information notice may be issued under both tiers of FIRS. There are circumstances where a person may be arranging for another individual to carry out the activity. In these circumstances, it is important for the Secretary of State to be able to issue an information notice to an individual whom they reasonably believe is carrying out an activity pursuant to a registerable arrangement, even if they are not the person who has made the arrangement.

I have considerable sympathy with the aims of Amendment 91, tabled by the noble Lord, Lord Wallace of Saltaire. Wherever possible, Governments should strive to share what they know to reduce the regulatory burden on ordinary people and businesses. However, I believe that the schemes he has listed have different purposes and requirements, with relatively little overlap. Where there is a risk of unnecessary duplication, registration requirements can be targeted to avoid this.

Amendment 106, also tabled by the noble Lord, Lord Wallace of Saltaire, seeks to require the Secretary of State to produce an annual report on the impacts of the enhanced tier, including on international research collaborations. Again, I seek to reassure the noble Lord on this point, as the Government will keep the impacts of the scheme under review.

Amendments 166B and 203A, tabled by the noble Lords, Lord Purvis of Tweed and Lord Wallace of Saltaire, seek to require the Secretary of State to produce guidance within six months of the Act passing, and to prevent regulations made under the scheme being brought into force until three months after the publication of the guidance. Again, I agree with the spirit in which this amendment has been made but, as I will seek to reassure noble Lords, the Government have already committed to producing guidance during the implementation period, prior to bringing the scheme into force.

I come to Amendment 154A in the names of the noble Lords, Lord Anderson and Lord Carlile. This contains reasonable points which would bring certainty to the provisions and the Government support it.

I hope noble Lords will support these amendments.

[Lord Wallace of Saltaire (LD)]

My Lords, I speak to Amendments 91 and 106, which the Minister has mentioned. In this case, I speak very much on behalf of the academic and policy research communities, with which I was professionally engaged for some 40 or more years.

We are concerned not to impose too great a burden on those who are engaged in international research. The Minister will be very well aware of the commitments that have already been made for researchers engaged in international co-operation to provide information to the Government, and the concerns that there have already been, particularly about collaboration with countries such as China and Russia. That information is provided to government, and I remind the Minister that, as a member of a Government who are strongly against adding to bureaucracy and red tape, it should be possible for government departments to share information, rather than require it to be given twice to different departments.

I am conscious that the Home Office has a poor record in this regard; indeed, the entire Windrush affair happened because the Home Office refused to ask other departments for information on whether or not the people concerned had been in this country. This was clearly available at the DVLA, the Department of Health, the national insurance scheme, et cetera. There is a real problem in government about asking for the same information twice. The information asked for indeed overlaps, and I ask the Minister to assure us that the Government will look at this matter again and do their best to make sure that it does not add to the burdens to which those of us who are concerned with international co-operation have to relate.

The Minister will be well aware that the Government are also negotiating to rejoin the Horizon European international collaboration scheme for science, probably the most impressive and important network for international co-operation in the world. All the members of the European Union and the various other countries associated with it are listed as foreign powers, with the exception of Ireland, so this is a live question. I declare an interest: my son, a scientist at the University of Edinburgh, is currently engaged in international co-operation with universities and research institutes—one or two of them government-sponsored and financed—in France, Germany, the Netherlands and the United States. That is a small snapshot of the extent of that collaboration, if one were to go merely to the biology faculty at the University of Edinburgh. I suspect that there are some 30 or 40 other countries with which 100 scientists at the university are involved in various collaborative activities.

The purpose of Amendment 106 is to gain the strongest assurances from the Government that they will look at whether additional burdens are being imposed by the legislation on those who are unavoidably and actively—and desirably—engaged in international collaboration with institutes, universities and other bodies that are part of, or dependent on, foreign Governments in one way or another. We need active assurance on that. If the Minister is able to give that, we will not press these amendments further but I emphasise that it is important that this legislation does not over-add to the requirements to report normal activities. I remind the Minister that we are talking about a country that is determined to become a science international superpower, and that needs to be sure that it does not put obstacles in its own way that deter those in other counties from collaborating as it ensures its security.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the enhanced tier of FIRS requires the registration of arrangements to carry out any activity in the UK, or for future activities to be carried out in the UK, at the direction of a specified foreign power or entity. It also requires activities carried out by specified entities to be registered. I too am grateful for how the Government have responded, following concerns that this tier could deter legitimate activities. The Minister has introduced a series of concessions, as he mentioned in opening, which we welcome. There are outstanding issues, which I would be grateful if he could amplify in his answers.

On his Amendment 106, the noble Lord, Lord Wallace, spoke about the need for regular reviews, which may highlight barriers to international collaboration. He gave examples from his family—particularly his son, who is no doubt doing important research work up at Edinburgh University. The purpose of this is to ensure that the enhanced scheme does not make the same mistakes as other schemes around the world. I draw the Australian scheme to the Minister’s attention, which I understand is currently being reviewed, given some high-profile concerns about how it is working. I look forward to his answer.

[Lord Sharpe of Epsom (Con)]

I thank noble Lords for their contributions to this short but constructive discussion. I will turn straight to the amendments tabled by the noble Lord, Lord Wallace of Saltaire.

Amendment 91 seeks to ensure that registration under FIRS is not required when the arrangement is registered under other legislative requirements. However, somewhat contrary to the noble Lord’s assertion, I think there is a clear difference between FIRS and the National Security and Investment Act, the academic technology approval scheme and the export control regime. The Government are clear that FIRS fills a gap in our toolkit. It is worth highlighting that the focus of this enhanced tier is to provide scrutiny to UK activities directed by specified foreign powers—it is worth emphasising this; we are talking about the enhanced tier—and foreign power-controlled entities.

We consider that there will be limited circumstances where there is a risk of duplication, but we will work closely across government departments and potential registrants to keep the burden of registration to a minimum and inform our approach to using this tier of the scheme. The Government do not want to impose unnecessary burdens. We have committed to a consultation on the guidance ahead of bringing the scheme into force. If that process identifies risks of duplication, the power to target what arrangements and activities will need to be registered can be used to reduce unnecessary duplication. This will be considered on a case-by-case basis when specifying foreign powers and entities.

[Lord Wallace of Saltaire (LD)]

Can the Minister give us an assurance that he will consult with the academies, the Royal Society and Universities UK to make sure that the element of duplication is reduced to the absolute minimum? When I was in government, we talked about trying to introduce the principle of “Tell us once” when people were in touch with government. In some other areas, that has now been introduced. The principle is a very good one; we do not want universities having to fill in forms unnecessarily widely. If he can assure us that there will be active consultation with those affected, I will not pursue this further.

[Lord Sharpe of Epsom (Con)]

My Lords, I am happy with the reassurance that we are committed to consulting, but I cannot say at this precise moment who we consult with. As I say, if that process identifies a risk of duplication, the power to target what arrangements and activities need to be registered can be used to reduce unnecessary duplication. Again, I stress that we are talking about the enhanced tier of the FIR scheme in the National Security Bill so, if there is a little bit of duplication, I am sure he will understand that in the context of the overall Bill.

Amendment 106 tabled by the noble Lord, Lord Wallace, would require the Secretary of State to produce an annual report on the impacts of the enhanced tier; the noble Lord, Lord Ponsonby, also questioned me on this. I reassure both noble Lords that the Government recognise the importance of keeping the impacts of the scheme under consideration. Clause 82 already requires the Secretary of State to produce and lay before Parliament an annual report every 12 months after the scheme goes live. The legislation will also be subject to the usual post-legislative scrutiny process, which will consider how the scheme has worked in practice and how far its objectives have been met. I therefore ask that the noble Lord does not press this amendment.

Amendments 166B and 203A tabled by the noble Lords, Lord Purvis of Tweed and Lord Wallace of Saltaire, seek to require the Secretary of State to produce guidance within six months of the Bill passing, and to prevent regulations made under the scheme from being brought into force until three months after the publication of guidance. In answer to the noble Lord, Lord Purvis, I say that the Government recognise the importance of ensuring guidance for the public to support the implementation of the scheme. However, it is important that there are not undue restrictions placed on the development of this guidance, to ensure that the guidance produced is clear and targeted to those complying. I can say to him that a revised impact assessment is required before Royal Assent, so that will be forthcoming. He also raised the point about the German Stiftungen. If he bears with me, we will address this directly in the next group. I will also go further: the Government have committed to establishing expert panels to produce sector-specific guidance on compliance with FIRS. With that, I think I have answered all the questions.

Amendment 87 agreed.

Moved by

[Lord Sharpe of Epsom]

88: Clause 64, page 45, line 19, after “for” insert “relevant”
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.

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Moved by

[Lord Sharpe of Epsom]

92: Clause 66, page 46, line 13, leave out from beginning to end of line 16 and insert—
“(A1) This section applies where a person (“P”) makes a foreign activity arrangement required to be registered under section 64(2).(1) P commits an offence if—(a) P carries out a relevant activity, or arranges for a relevant activity to be carried out, in the United Kingdom pursuant to the arrangement,”Member's explanatory statement
This amendment confines the offence in Clause 66(1) to the person who makes a foreign activity arrangement with a specified person.

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Moved by

[Lord Sharpe of Epsom]

97: Clause 67, page 46, line 22, after “out” insert “relevant”
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to clause 67 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to clause 67.

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Moved by

[Lord Sharpe of Epsom]

107: Clause 68, page 47, line 14, leave out first “principal” and insert “power”
Member's explanatory statement
This amendment and Lord Sharpe’s other amendment to Clause 68(1) restrict the definition of foreign influence arrangements to arrangements with foreign powers.

[Lord Sharpe of Epsom (Con)]

My Lords, I have listened carefully to the debate about the political tier of the foreign influence registration scheme. I am immensely grateful to the House and others for their expertise and the constructive nature of the debate.

In response to the strength of feeling, this group of amendments refocuses the political tier back on its original intention: the influence of foreign powers over UK democracy. In its revised form, this tier would require registration only where a person is carrying out political influence at the direction of a foreign Government. That bears repeating—only where a person is carrying out political influence at the direction of a foreign Government. To be clear, this will take those being directed by foreign companies, foreign charities or other foreign entities entirely out of scope of the scheme.

I know that there has also been some debate about what it means to be directed by a foreign power. That is a high bar. Its natural meaning is an order or instruction to act. It could be delivered in the language of a request, but only where there is a power relationship between the person and the foreign power which adds an element of control or expectation to the request—for example, through a contract, payment, coercion, or the promise of a future compensation or favourable treatment. It is not enough for a foreign power to fund an activity. Generic requests, joint collaboration, or simply an alignment of views, absent this power relationship, will not meet the test for direction.

As part of this package of amendments, we have made some other changes, which I hope will be welcomed by noble Lords. A person will now have up to 28 days to register an arrangement under the political tier and does not need to register the arrangement before the activity takes place. This will give greater flexibility and ensure that we do not impede spontaneous activity.

We have narrowed the definition of “political influence activity” so that attempts to influence a Member of Parliament or equivalents in the devolved Administrations will require registration only when it is intended to influence them in their capacity as a Member of Parliament. Activity which seeks to influence these individuals in their personal capacity will not be registerable. Amendment 120 makes this clear.

As outlined on the previous group, we have made some minor changes to the offences to ensure that they work properly for subcontractors and that a person will not fall foul of the offence where they have taken all reasonably practicable steps to determine that an arrangement is registered.

I am pleased to say that we have accepted the recommendation by the Delegated Powers and Regulatory Reform Committee that regulations detailing the information to be published on the FIRS public register made under Clause 79 should be subject to the affirmative procedure. The public register is a vital element of the scheme. However, we recognise that there will be sensitivities in publishing some information and understand the call for an opportunity to debate this important matter.

I know that your Lordships have been anxious to scrutinise draft regulations under this part of the Bill. Last week, I published two sets of draft regulations setting out what information will be required from registrants and what information will be published. Importantly, these regulations confirm that we will not publish information where there is a risk that doing so would prejudice national security, put an individual’s safety at risk or involve the disclosure of commercially sensitive information. I have placed copies of these indicative regulations in the House Library.

This is accompanied by a government policy statement setting out how we envisage the other delegated powers being used. This includes an example registration form, which I hope noble Lords have found useful in thinking about how the scheme will work.

We are keen for the implementation of this scheme to be as collaborative as possible, which is why we will hold a further public consultation on the guidance required for the scheme prior to commencement. We will also continue to review the scheme and consider any further exemptions necessary to ensure that there is no negative impact on potential inward investment into the UK.

It is important to understand the wider context for FIRS. We are in an era of increased state-based competition. Foreign powers are seeking to influence British democracy to further their own interests, sometimes openly and sometimes covertly.

Foreign influence is not unwelcome. We recognise that Governments around the world seek to influence policies in the UK in a way that benefits their interests. Of course, the UK does the same. This type of influence, when conducted in an open and transparent way, contributes positively, and we recognise the critical role that this expertise plays in enhancing policy-making, employment and wealth creation. However, when foreign powers seek to influence in a way that is not transparent, this can have serious implications for the UK, posing risk to our open system of government and risking erosion of public confidence in political and government institutions.

We need to be more vigilant about this risk. Currently, foreign Governments can use others as proxies to attempt to influence British Ministers, MPs, officials, or indeed shape British public opinion, with only a limited requirement to disclose the hidden hand behind this influence, and no sanction if discovered. It is not unreasonable to aspire to a greater understanding of foreign influence; for the Government, parliamentarians and wider public to know where this influence is being brought to bear. FIRS seeks to address this gap, providing us all with more information about the scale and nature of foreign political influence in the UK. I look forward to the debate on the amended provisions and addressing the amendments that have been tabled.

Finally, I make noble Lords aware that we have identified an inconsistency in the treatment of ministerial decisions taken across the devolved Administrations that fall within the scope of this tier. I commit to tabling an amendment at Third Reading that will resolve that issue. For now, I beg to move.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who participated in this debate. I am feeling a little overwhelmed. The Government have moved a long way, as has been noted, on the FIRS scheme, which now tackles what it was originally intended to address. I thank all noble Lords for their probing amendments. I would particularly like to thank the noble Baroness, Lady Hayter, for paying special attention and noticing my deliberate error. I should have said—and I will repeat this because I repeated it the first time around—“foreign powers, including foreign Governments”.

With the leave of the House, and in answer to the noble Lord, Lord Beith, I will speak to Amendment 110A, standing in the name of the noble Lord, Lord Carlile, and signed by the noble Lord, Lord Anderson. The Government do not intend to require the registration of defunct foreign influence arrangements, so we urge the House to support the amendment.

Amendments 114 and 121, tabled by the noble Lord, Lord Carlile, and the noble Baroness, Lady Hayter, would remove the requirement to register foreign influence arrangements at Clause 68, and the meaning of “political influence activity” at Clause 70, from the scheme. These clauses are essential to the functioning of the revised political influence tier of the scheme, and for this reason I ask that the amendments be withdrawn. I will, however, go into a little more detail on the impact on the proceedings of a UK-registered party in Clause 70. It is not intended to cover every activity undertaken by a UK political party. The focus is on where foreign powers are seeking to influence formal matters of a UK political party, such as candidates’ selections and adoption of policy through third parties; but it will not, for example, cover decisions around venue changes for joint conferences. In this way, we believe that this scheme is appropriately targeted to focus on the arrangements and activities where transparency is most needed, while avoiding unnecessary bureaucracy. However, I have heard the noble Baroness on a number of occasions now and I will certainly be taking her points into account when we are developing the guidance.

I thank the noble Lord, Lord Wallace of Saltaire, for his Amendment 166A. This would require the Government to consult, and lay a report in Parliament, on the merits of expanding the foreign influence registration scheme to those controlled by a foreign power seeking to influence public policy. Again, we have sympathy with this amendment and, indeed, one of the reasons why the Government originally sought a broader scheme was to fully capture the proxies of foreign powers. I share the noble Lord’s interest in ensuring we remain responsive to the risks posed by covert influence, but I reassure him that the Government will keep the impacts of the scheme, and any need to expand it, under careful review. The timings for this are important and I cannot accept an amendment that may tie the Government to evaluating the scheme before it has come into force and had a chance to bed in. So I ask him not to press this amendment but reassure him that the Government will be able to use the annual review requirements to assess areas where the scheme could be strengthened.

In addressing the point raised in both this group and the last by the noble Lord, Lord Purvis, around the impact of the scheme on foreign political foundations, we did meet with representatives of the German embassy after the debate last week to discuss this scheme, and recognise the importance of the work carried out by political foundations such as the Konrad-Adenauer-Stiftung to promote political co-operation and the values of democracy and the rule of law. So I reassure the noble Lord that institutions such as these that operate independently of foreign powers will not have to register their activities. Receiving funding from a foreign power does not trigger a requirement to register under the scheme. Only where organisations are being directed by a foreign power through a power relationship to carry out political influence activities will that need to be registered. With that, I think that I have answered all the questions.

Amendment 107 agreed.

Moved by

[Lord Sharpe of Epsom]

108: Clause 68, page 47, line 14, leave out second “principal” and insert “power”
Member’s explanatory statement
This amendment and Lord Sharpe’s other amendment to Clause 68(1) restrict the definition of foreign influence arrangements to arrangements with foreign powers.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

112: Clause 68, page 47, line 23, leave out “10” and insert “28”
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 68, page 47, line 19.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

115: Leave out Clause 69
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

116: Clause 70, page 48, line 25, leave out “principal” and insert “power”
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

123: Clause 71, page 49, line 16, leave out from first “to” to end of line 17 and insert “the arrangement”
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 71, page 49, line 13.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

126: Clause 72, page 49, line 22, leave out subsections (1) and (2)
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

134: Schedule 15, page 184, line 7, leave out “(1) to”
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to omit Clause 72(1) and (2).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

147: Clause 75, page 51, line 13, at end insert—
“(ba) a person the Secretary of State reasonably believes to be carrying out relevant activities, or arranging for relevant activities to be carried out, in the United Kingdom pursuant to a foreign activity arrangement within paragraph (a) or (b);”Member's explanatory statement
This amendment allows the Secretary of State to give an information notice to persons carrying out relevant activities pursuant to a foreign activity arrangement who are not themselves a party to the arrangement.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

154A: Clause 75, page 51, line 31, at end insert—
“(3A) An information notice may only specify information which the Secretary of State considers may be relevant to an arrangement or activity within subsection (1) or (2).”Member's explanatory statement
This amendment clarifies the information which may be specified in an information notice.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

155: Clause 77, page 52, line 24, leave out “an” and insert “a relevant”
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

158: Clause 78, page 53, line 6, leave out first “an” and insert “a relevant”
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

162: Clause 79, page 53, line 32, after “(1)” insert “(a)”
Member's explanatory statement
This amendment clarifies that Clause 79(2) only relates to the power in Clause 79(1)(a).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

163: Clause 80, page 54, line 15, leave out “an” and insert “a relevant”
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

165: Clause 82, page 55, line 21, leave out “principals” and insert “powers”
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

167: Clause 83, page 56, leave out line 3
Member's explanatory statement
This amendment omits the definition of “foreign principal” and is consequential on Lord Sharpe’s amendments to Clause 68(1).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

186: Clause 89, page 60, line 35, at end insert—
“(7A) Condition G is met where—(a) the general case services are those described in paragraph 11, 33, 34 or 35 of Schedule 1 (services in relation to domestic violence and housing), and(b) the offender—(i) was or is a victim of domestic violence occurring after the relevant date, or(ii) is at risk of being a victim of domestic violence.(7B) In subsection (7A)—“domestic violence” has the meaning given in paragraph 12(9) of Schedule 1;“relevant date” means the date five years before the application date.”Member's explanatory statement
This amendment would allow offenders to access civil legal aid in relation to services relating to domestic violence and housing where they were at any time in the five years preceding their application, or at any time after their application, victims of domestic violence, or are at risk of being victims of domestic violence.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

191: After Clause 91, insert the following new Clause—
“Amendments of Terrorism Act 2000Schedule (Amendments of Terrorism Act 2000) contains amendments to the Terrorism Act 2000.”Member's explanatory statement
This amendment introduces the new Schedule inserted by Lord Sharpe before Schedule 17.

[Lord Sharpe of Epsom]

My Lords, Section 41 of the Terrorism Act 2000—hereafter referred to as TACT —confers a power on a police officer to arrest a person whom they reasonably suspect to be a terrorist. Under Section 41, officers are able to detain someone before charging or releasing them. The Section 41 detention clock allows them to do so for a maximum period of up to 14 days. It is possible for a person to be arrested under Section 24 of PACE then subsequently rearrested under Section 41 of TACT. This might happen, for example, when information comes to light during the investigation indicating that the offence of which the individual is accused has a terrorist connection. Under the current position, the time spent in detention under Section 24 would, in theory, not be counted towards the initial 48-hour permissible period of detention under Section 41. Though counting this time is, in fact, current operational practice, the Government are clear of the need to codify this practice and ensure that the safeguard continues to apply in all future cases. This is what this amendment does, while aligning the power relating to foreign power threat activity contained in Part 1 of this Bill.

Schedule 5 to TACT contains a power under which an officer of at least the rank of superintendent may, by a written order, give to any constable the authority which may be given by a premises search warrant issued by the court for the purposes of a terrorist investigation. The authorising officer must have reasonable grounds for believing that the case is one of great national emergency and that immediate action is necessary. We are seeking to amend Schedule 5 to TACT to create an ex post factum judicial authorisation safeguard. This will require the police to apply to the court for a warrant in relation to any relevant confidential journalistic material seized during the search that they need to retain for the purposes of a terrorist investigation. In the interests of national security, it is right that confidential material should be accessible in cases where the police can show that the action is necessary, proportionate and satisfies the legal tests in these provisions, while pursuing a terrorist investigation.

However, the Government also recognise that press freedoms are extremely important. Therefore, when such material is seized during a search that has been authorised under this urgent procedure, it is right that a warrant must be sought from a judge for its continued retention, and that an application for retention can be ex post factum, after the search itself has taken place. This approach reflects recent case law and ensures that the provisions provide appropriate protection for journalists. This amendment will also align this aspect of Schedule 5 to TACT with the equivalent urgent premises search power found in Schedule 2 to this Bill.

I turn to Amendment 192, tabled by the noble Lord, Lord Coaker. This amendment seeks to impose on the Secretary of State a duty to implement the recommendations of the Intelligence and Security Committee’s report on Russia. As noble Lords will be aware, the Government published their response to the Russia report on the day the report itself was published, 21 July 2020. Although the report did not itself enumerate specific recommendations, all the recommendations that could be identified in the report were addressed in the government response. A majority of the ISC’s recommendations had already been implemented by the Government before the report was published—for example, those covering co-ordination of HMG’s Russia work, close working with international partners and continued exposition and attribution of malign Russian activity. The then Home Secretary reiterated this in a Statement made to the House on 17 January 2022.

The Government’s response made our approach to tackling the recommendations in the report clear. By introducing effective new tools and powers for the police and security and intelligence agencies, this Bill can rightly be seen as delivering on commitments that the Government made in their response. Noble Lords will also be aware that the Government implement the vast majority of all ISC recommendations. However, there may be occasions when, for reasons including national security, we may not be able to take forward specific recommendations. We do not consider further reporting nor this amendment necessary, given the actions that the Government have already taken in response to the report.

Amendment 193, also tabled by the noble Lord, Lord Coaker, seeks to impose a duty on the Prime Minister to update the memorandum of understanding between the Government and the Intelligence and Security Committee to reflect the changes to the Government’s intelligence and security activities as a result of the Bill. Section 3(2) of the Justice and Security Act 2013 already provides for the ISC to make reports

“as it considers appropriate concerning any aspect of its functions”.

That already gives the ISC the ability to report on matters that fall within its remit so far as is consistent with the MoU—for example, to seek to avoid duplicating the work of other committees. Amending the Bill as proposed might be taken to imply that the ISC required explicit legislative nomination to propose changes to the MoU in relation to changes in intelligence and security arrangements brought in by Bills, which is not the case.

I turn to the amendment tabled by the noble Lord, Lord Wallace of Saltaire. I am aware that there are concerns about how the now closed tier 1 investor route operated—in particular, concerns that the route was used by those relying on funds that had been illegitimately acquired and those who may have posed a wider risk to the UK’s national security. It was because of those concerns that we committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity, or being engaged in serious and organised crime.

The Statement of 12 January represents the Government’s substantive response to the commitment to undertake a review and publish our findings. I am aware that some noble Lords would have preferred that the published review had included more information about specific individuals. However, we have had to act responsibly with regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border, and the vital work of our law enforcement agencies.

I stress that this Government have already acted decisively regarding the risks posed by the tier 1 investor route to the UK’s national security when we closed the route on 17 February 2022. The Government have also been clear that any future visa programme in the investment space must operate on a fundamentally different premise from the previous one, with a far greater focus on skills and impacts, rather than just cash in the bank. I beg to move.

[Lord Coaker (Lab)]

My Lords, this is the first opportunity I have had to join other noble Lords in thanking the Minister for the various significant changes the Government have made to the National Security Bill and the improvement they have brought.

I shall speak to my Amendments 192 and 193. Again, I thank the Minister for his various amendments in this group, which are also an important step forward. I will leave the noble Lord, Lord Wallace, who has signed my Amendment 192, to speak to his Amendment 194.

Amendment 192 deals with the recommendations of the July 2020 ISC Russia report. The Minister has addressed some of those but I have one or two questions to ask him before I turn to Amendment 193, which is the real priority for me in this group. The report highlighted the fragmentation of the various bodies. The Minister has spoken about how the Government seek to address that, but we would all like to know how the supposed co-ordination of the government response to the Russia report is being monitored to ensure that it is taken forward, and that what the Government say about the need for co-ordination to tackle fragmentation is made a reality.

The report highlighted again the prominence of dodgy Russian money in London. The Government will say, quite rightly, that they have at last taken action on that. How is that progress being monitored, so that we know how effective it has been, particularly in light of Ukraine? Similarly, can the Government reassure us that the various threats to democratic processes that the report highlighted are being addressed? I do not intend to press Amendment 192 to a vote—I am really just asking about the progress made since the report was published. As the Minister said, the Government’s response was published on the same day, but the question is how we maintain the progress that we all want to see on the various issues raised.

I will try to be as brief as possible on Amendment 193. The ISC’s annual report, published on 13 December 2022, clearly laid out the need to update the memorandum of understanding. That is what my Amendment 193, on which I will test the opinion of the House, seeks to do: to update the MoU the ISC operates under to reflect the changes made by the Bill and those made over the last few years. The Minister himself referenced the various government departments that now have responsibility for different aspects of security and intelligence, a point I will come to in a moment.

Let us remember that the ISC was set up in 1994 to allow for greater parliamentary oversight of these important matters, while respecting the obvious need for national security—an issue brought into sharp focus by the excellent Saunders report on the horrific Manchester Arena attack. The current MoU is out of date. The commitment made by the Security Minister in 2013 during the passage of the Justice and Security Act—that the MoU is a live document that is easily changed—needs to be honoured.

Who oversees the increasing devolution to policy departments of intelligence and security activities? How can parliamentarians scrutinise those when only ISC members with the necessary security clearance can access classified information? The Select Committees supposedly tasked with these various oversight roles are not suitable for that reason, rather than for any reason of capability. They simply do not have the security clearance to look at classified information.

The following departments and bodies are mentioned in the Saunders recommendations: the Department for Education, the Crown Prosecution Service, the Law Commission, the Home Office and the Ministry of Justice—and that is the open part of the report; for obvious reasons, we will not know what is in the closed part. If the ISC oversees all this, as it is perhaps expected to do in light of the recommendations, how will that work with regard to the Department for Education and the various other departments?

Our committee says that the outdated MoU is a real problem, but the Government say it is not. The ISC says it is a problem, but the Government simply dismiss it and say it is not. Can the Minister explain how members of a Select Committee—let us use BEIS as an example—can oversee classified information that informs the work of a body they are responsible for if they cannot see that information? Pages 42 and 43 of the Intelligence and Security Committee annual report lists numerous departments that have various security and intelligence functions they are supposed to oversee, but they will not be able to see the classified information because they do not have the security clearance. The ISC itself cannot oversee this because that is not part of the memorandum of understanding under which it works.

The committee was told, as I said, that the Government do not feel bound by statements made by the Security Minister to Parliament in 2013. So what weight should we give to any Ministerial Statements the Minister makes if, in a few years’ time, the Government can simply say, “We don’t give any weight to what was said in 2013”? Parliamentary Statements by Ministers of the Crown are supposed to be justifications of policy. We all rely on them. Courts rely on them. Many amendments to this Bill were withdrawn earlier because of what the Minister said at the Dispatch Box and the reassurances he gave, yet the Government are saying that they no longer agree with the 2013 assurances given by then Security Minister, so they will ignore them. We are talking not about policy—I understand how policy works—but about process and the need to update it. As I say, that is very disappointing, to say the least.

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[Lord Butler of Brockwell (CB)]

My Lords, I want to support Amendment 193, moved by the noble Lord, Lord Coaker. He said that he felt the memorandum of understanding had not been renewed and brought up to date for no good reason. I believe it is worse than that. I think it has not been revised for a bad reason: because the Government have taken a dislike to the Intelligence and Security Committee. They have tried to restrict its activities, I believe for two reasons. First, the Government were piqued when there was pressure to publish the Russia report before the 2019 election and they did not want that. I suspect the reason they did not want it was that they did not want the discussion which the report introduced about the involvement of Russian apparatchiks in London politics. Secondly, I believe the Government were piqued because the committee did not elect as its chairman the person whom the Government wanted. It seems extraordinary that one could say of a responsible Government that these were their motives; they are childish motives. But the consequence is that in recent times the Intelligence and Security Committee of Parliament has not been used for the purpose for which it was set up.

If the Government are not going to use the Intelligence and Security Committee properly, they should save money and abolish it. But, of course, they will not do that because Parliament set it up, Parliament thinks it is important that this House and the House of Commons should have some insight into intelligence operations, and it would be unacceptable for the Government to abolish it. But they must choose either to abolish it or to use it properly. If they are to use it properly, they must update the memorandum of understanding and, as the noble Lord, Lord West, said, use it for the purpose for which Parliament intended: to give oversight by people who are fully screened within the ring of secrecy to report to Parliament. I think this is a much more important amendment than the face of it suggests.

[Lord Sharpe of Epsom (Con)]

My Lords, again I thank all those who have spoken on this group of amendments, and in particular I thank the noble Lord, Lord Coaker, for his generous remarks.

In terms of the Russia report, it is simply not true that we have not implemented the report’s recommendations. As I said in my opening remarks, the Government published a full and comprehensive response to the ISC report in July 2020, which is available online and which addressed all the committee’s key themes and recommendations point by point. The Government have responded to all the recommendations that could be identified within the report. The majority of the committee’s recommendations were already being implemented by the Government before the report was published: for example, those covering co-ordination of HMG Russia’s work, close working with international partners, and continued exposition and attribution of malign Russian activity.

I would say also that, as noted in HMG’s response to the Russia report, an assessment was produced and is available at a higher classification. Noble Lords will appreciate the difficulties of producing intelligence assessments for the wider public, given the risks of putting sensitive material, including information about our capabilities and methods, into the public domain.

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[Lord Coaker (Lab)]

Before the noble Lord moves on to a different amendment, can he answer my question? How can Select Committee members, who do not have the necessary security clearance, possibly look at and scrutinise classified material on Parliament’s behalf?

[Lord Sharpe of Epsom (Con)]

If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.

[Lord Beith (LD)]

Has the noble Lord quite grasped the significant value of the ISC? I speak as someone who used to be on it. One aspect is its value to the Prime Minister, who gets a detailed assessment of aspects of security in circumstances where nobody else can, and he alone can do something about it. It is also an important guarantee to parliamentary colleagues in both Houses that things that cannot be disclosed are being examined by people whom colleagues trust, and that is very important in order to have some confidence that there is oversight going on.

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble Lord. I certainly get it, and I hold the ISC in great respect, including the noble Lords in this House who are members. As I have said, the Justice and Security Act requires the Prime Minister to read the report before it is published. He gets an unredacted version, so he sees the full picture, and I have committed to take back the House’s concerns about attending the committee, via my noble friend Lord True.

If I may, I will turn to the tier 1 investor visa route, and I am afraid that I will have to repeat a number of things that I said in my opening remarks. The review of visas issued under the route took place relatively recently. A Written Ministerial Statement on 12 January set out the findings of that review, which reviewed visas issued between 2008 and 2015. That included that it had identified a minority of individuals connected to the tier 1 investor visa route that were potentially at high risk of having obtained wealth through corruption or other illicit financial activity. The Statement represented the Government’s substantive response to the commitment to undertake that review and publish its findings.

I am aware that the noble Lord, Lord Wallace, would have preferred that the published review included more information about specific individuals. I agree with his remarks about protecting our democracy and transparency. However, we have had to act responsibly in regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border and the vital work of our law enforcement agencies. I think that those are perfectly reasonable points to have made in regard to the tier 1 investor visa.

I appreciate that I have not given as fulsome answers as all noble Lords would like, but in light of the answers that I have given, I request that noble Lords do not press their amendments.

Amendment 191 agreed.

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[Lord Evans of Weardale (CB)]

My Lords, it is an honour to follow the noble Lord, Lord Alton. I have considerable sympathy for what he says in view of the appalling behaviour of the IRGC. However, this amendment, as I understand it, would open the door to the proscription of state organisations, with proscription having originally been envisaged as a mechanism principally to bear down on non-state organisations.

I wonder therefore whether the Minister, when he responds, could clarify whether the proscription of state organisations brings with it unintended consequences that would be potentially quite difficult. For instance, will we say that anybody who is a member of a hostile intelligence service—which might be proscribed—is, by definition, committing an offence? What will that do, for instance, to intelligence liaison with people who are hostile to us, which sometimes happens? Does it create problems which would not be created for a non-state organisation, because these organs will be part of a very considerably bigger state entity with which we may have to engage at some level?

I am neither in favour with nor against the amendment. I am not quite sure exactly how it would work, and I would be very grateful if the Minister could clarify those aspects.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have participated in this very brief debate.

I think it would be helpful to give a brief overview of the concept of proscription as outlined in Part 2 of the Terrorism Act 2000. Put simply, proscription can play an important role in degrading the ability of terrorist organisations to operate effectively, and it sends a strong message that the UK is a hostile operating environment for such groups. The Terrorism Act 2000 gives the Home Secretary the power to proscribe a group if she has a reasonable belief that it is currently concerned in terrorism and it is proportionate to do so. The amendment seeks to replicate this within an explicit state threats context and requires that the Government develop and publish appropriate draft legislation.

The Home Secretary’s decisions on proscription can be legally challenged. As such, those decisions are supported by a comprehensive, evidence-led process which involves close consultation with other government departments and partners. This House will fully appreciate that developing a state threats proscription power will need to be considered fully.

Before I go on, I will refer to the IRGC, as it has come up in all contributions. I remind the House that the United Kingdom already sanctions the IRGC in its entirety. The separate list of proscribed terrorist organisations is kept under very careful review, but we do not routinely comment on whether an organisation is or is not under consideration for proscription.

In response to the illustrative points from the noble Lord, Lord Coaker, on whether there is a legislative gap in this area, I say that the National Security Bill creates a wide range of offences, tools and powers to counter state threats activity. In many respects, they cover very similar ground to a proscription-like power. For example, any person materially assisting a foreign intelligence service in their UK-related activities would commit an offence under Clause 3. Under the enhanced tier of the foreign influence registration scheme in Part 3, the Government could require the registration of all activities being conducted with those specified under the scheme. The Government will, with the agreement of Parliament, be able to specify a foreign power, part of a foreign power or an entity controlled by a foreign power. That means that those who are in arrangements with such organisations must register their activities or risk prosecution. The noble Lord, Lord Coaker, referred to my right honourable friend in the other place, the Security Minister, and I know that he is reassured by this.

However, as the Government have previously set out, we see the Bill as forming a new baseline for state threats legislation from which the statute will inevitably build over time as the threat evolves and diversifies. I am therefore grateful to the noble Lord for raising the issue and giving us the opportunity to debate it. I reassure him that I understand the reasons behind the amendment and the concern about the activities of state groups such as the IRGC. The Government of course share the noble Lord’s concerns, as was made clear in the Government’s statements on Iran International —to which the noble Lord, Lord Alton, also referred—which highlighted the potentially lethal operations of the IRGC taking place in the UK.

The amendment raises an important question of whether more needs to be done in this space, and I can reassure all noble Lords that this is a question that the Government are already considering carefully. The Government are committed to tackling all forms of state threats and to ensuring that our police and security services have the right powers to keep the UK safe.

Given, as I have said, that the measures in the Bill already have a similar effect in the state threats context to that achieved through the proscription for terrorism, we need to fully consider, alongside our operational partners, whether and how additional tools such as a state threats proscription power would add to the offences and measures in the Bill. We are committed to ensuring that any future legislation we pursue in this area has maximum effect.

Returning to the amendment itself, while it does not seek to set the ultimate scope of any legislative provision, I am afraid I am unable to accept an amendment that too tightly constrains our thinking in this important area. Linking proscription to hostile activity as defined in Schedule 3 to the Counter-Terrorism and Border Security Act 2019 would need careful consideration. I very much take on board the points of the noble Lord, Lord Evans, on this and on the scope. While that definition was considered suitable for that legislation, a different approach was taken in the National Security Bill, reflecting the differing nature of the tools and powers it contains. I would not want to pre-empt what might work best in the context of a potential proscription-like power. Furthermore, it is possible that to deliver an operational benefit, the tool may need to be created in a different way, and as such proposing a link to existing proscription processes may be unhelpful.

For these reasons, the Government cannot accept this amendment as drafted. I am also going to have disappoint the noble Lord, Lord Purvis: I am unable to comment on the Wagner Group; I am not qualified to do so. I hope the noble Lord is reassured that the Government are already looking carefully at this area and will therefore consider withdrawing his amendment.

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Moved by

[Lord Sharpe of Epsom]

196: Before Schedule 17, insert the following new Schedule—
“ScheduleAmendments of Terrorism Act 20001 (1) Section 41 to the Terrorism Act 2000 (arrest without warrant) is amended as follows.(2) In subsection (3)(b)—(a) for the words from “Schedule 7” to “2019,” substitute “a provision listed in subsection (3A)”;(b) for “examination under that Schedule” substitute “detention under that provision”.(3) After subsection (3) insert—“(3A) Those provisions are—(a) section 24 of the Police and Criminal Evidence Act 1984;(b) Article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));(c) Schedule 7;(d) section 1 of the Criminal Justice (Scotland) Act 2016 (asp 1);(e) Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019;(f) section 27 of the National Security Act 2022.”(4) After subsection (8) insert—“(8ZA) Subsection (8A) applies where— (a) a person is detained under this section in hospital, or(b) a person detained under this section is removed to hospital because the person needs medical treatment.”(5) In subsection (8A)—(a) for the words before paragraph (a) substitute “Where this subsection applies”;(b) in paragraph (a) after “hospital or” insert “(where this subsection applies by virtue of subsection (8ZA)(b))”;(c) in paragraph (b) after “hospital or” insert “(where this subsection applies by virtue of subsection (8ZA)(b))”.2 (1) Schedule 5 to the Terrorism Act 2000 (terrorist investigations) is amended as follows.(2) In paragraph 3 (power to search premises within cordoned area)—(a) in sub-paragraph (1) for the words from “Subject” to “superintendent” substitute “A constable”;(b) in sub-paragraph (2) for the words from “who” to “paragraph” substitute “may exercise the power in sub-paragraph (1) only”.(3) In paragraph 15 (search and seizure in urgent cases: England, Wales and Northern Ireland)—(a) at the end of sub-paragraph (1) insert “(subject to sub-paragraph (1A))”;(b) after sub-paragraph (1) insert—“(1A) An order under this paragraph giving the authority which may be given by a search warrant under paragraph 11 does not authorise a constable to retain confidential journalistic material.(1B) “Confidential journalistic material” means material which is excluded material by virtue of section 11(1)(c) of the Police and Criminal Evidence Act 1984.”(4) After paragraph 15 insert—“15A “(1) This paragraph applies where confidential journalistic material is seized by virtue of an order under paragraph 15 giving the authority which may be given by a search warrant under paragraph 11.(2) A constable may apply to a Circuit judge for the issue of a warrant under this paragraph.(3) An application under sub-paragraph (2) must be made as soon as reasonably practicable after the material is seized.(4) The judge may grant an application under sub-paragraph (2) if satisfied that conditions 1 to 3 are met.(5) Condition 1 is that the warrant is sought for the purposes of a terrorist investigation.(6) Condition 2 is that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or with other material, to a terrorist investigation.(7) Condition 3 is that there are reasonable grounds for believing that it is in the public interest that the material should be retained having regard to the benefit likely to accrue to the terrorist investigation if the material is retained.(8) A warrant under this paragraph is a warrant authorising the retention of confidential journalistic material.(9) A warrant under this paragraph may impose conditions on the retention and use of the material.(10) If the judge does not grant an application for the issue of a warrant under this paragraph in relation to any of the material to which the application relates, the judge may direct that the material is—(a) returned to the person from whom it was seized, or (b) destroyed.(11) “Confidential journalistic material” has the same meaning as in paragraph 15.”(5) In paragraph 18 (application to Northern Ireland) before paragraph (f) insert—“(ea) the reference in paragraph 15(1B) to section 11(1)(c) of the Police and Criminal Evidence Act 1984 is to be taken as a reference to Article 13(1)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),”(6) In paragraph 31 (search and seizure in urgent cases: Scotland)—(a) at the end of sub-paragraph (1) insert “(subject to sub-paragraph (1A)).”;(b) after sub-paragraph (1) insert—“(1A) An order under this paragraph does not authorise a constable to retain confidential journalistic material.(1B) “Confidential journalistic material” has the same meaning as in the Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act).”(7) After paragraph 31 insert—“31A “(1) This paragraph applies where confidential journalistic material is seized by virtue of an order under paragraph 31.(2) The procurator fiscal may apply to a sheriff for the issue of a warrant under this paragraph.(3) An application under sub-paragraph (2) must be made as soon as reasonably practicable.(4) The sheriff may grant an application under sub-paragraph (2) if satisfied that conditions 1 to 3 are met.(5) Condition 1 is that the warrant is sought for the purposes of a terrorist investigation.(6) Condition 2 is that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or with other material, to a terrorist investigation.(7) Condition 3 is that there are reasonable grounds for believing that it is in the public interest that the material should be retained having regard to the benefit likely to accrue to the terrorist investigation if the material is retained.(8) A warrant under this paragraph is a warrant authorising the retention of confidential journalistic material.(9) A warrant under this paragraph may impose conditions on the retention and use of the material.(10) If the sheriff does not grant an application for the issue of a warrant under this paragraph in relation to any of the material to which the application relates, the sheriff may direct that the material is—(a) returned to the person from whom it was seized, or(b) destroyed.(11) “Confidential journalistic material” has the same meaning as in paragraph 31.””Member's explanatory statement
The amendments to section 41 of the Terrorism Act reflect provision in Clause 27 of the Bill. The amendments to paragraph 3 of Schedule 5 amend powers to authorise searches. The remaining amendments to Schedule 5 restrict powers to retain confidential journalistic material to reflect provision in Schedule 2 to the Bill.

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Moved by

[Lord Sharpe of Epsom]

198: Schedule 17, page 194, line 16, at end insert—
“Investigatory Powers Act 2016 (c. 25)
10 (1) Schedule 3 to the Investigatory Powers Act 2016 (exceptions to the exclusion of certain matters from legal proceedings) is amended as follows.(2) After paragraph 8 insert—“Proceedings under Part 2 of the National Security Act 20238A (1) Section 56(1) does not apply in relation to—(a) any proceedings which are relevant proceedings within the meaning of Part 2 of the National Security Act 2023 (see section 63(1) of that Act), or(b) any proceedings arising out of any proceedings within paragraph (a).(2) But sub-paragraph (1) does not permit the disclosure of anything to—(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or(b) any person who—(i) represents such a person for the purposes of the proceedings, and(ii) does so otherwise than by virtue of an appointment as a special advocate under Schedule 10 to the National Security Act 2023.”(3) In paragraph 20(2) (proceedings for certain offences)—(a) after paragraph (h) insert—“(ha) an offence under section 1 or 3 of the National Security Act 2023 relating to any information, document or other article which, or an offence under section 12 of that Act relating to any asset which—(i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or(ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur;(hb) an offence under section 18 of the National Security Act 2023 in relation to an offence falling within paragraph (ha);”(b) in paragraph (i), for “(h)” substitute “(ha)”.”Member's explanatory statement
This amendment makes consequential amendments to the Investigatory Powers Act 2016.

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Moved by

[Lord Sharpe of Epsom]

200: Clause 94, page 64, line 19, at end insert—
“(za) regulations under section 64(1B);”Member's explanatory statement
This amendment provides for the affirmative procedure to apply to regulations under Clause 64(1B), which is inserted by Lord Sharpe’s amendment to Clause 64, page 45, line 19.

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Moved by

[Lord Sharpe of Epsom]

204: Title, line 7, after “terrorism;” insert “to amend the Terrorism Act 2000;”
Member's explanatory statement
This amendment is consequential on the new Schedule inserted by Lord Sharpe before Schedule 17.

Code of Practice for the Forensic Science Regulator

Lord Sharpe of Epsom Excerpts

Wednesday 1st March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Code of Practice laid before the House on 26 January be approved. Considered in Grand Committee on 27 February.

Motion agreed.

National Security Bill

Lord Sharpe of Epsom Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

1: Clause 1, page 1, line 9, after “or” insert “having regard to other matters known to them”
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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

My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.

The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.

Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.

I begin with the amendments focusing on “ought reasonably to know”. The phrase was said to be unclear, with concerns raised that it could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly—who did not know but are told that they should have known. I would like to strongly emphasise that this is not the Government’s intention and we do not consider that the current formulation would be interpreted by the courts in this way. However, we have considered the concerns raised on this issue, particularly the useful contributions in Committee from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Marks. We agree that it would be helpful to clarify the meaning. These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known something.

I now turn to amendments which all relate to the offence of materially assisting a foreign intelligence service. The amendments that the Government have put forward update the offence provided for in Clause 3(2). These amendments are similar to the ones put forward in Committee by the noble Lord, Lord Marks. The effect of these amendments is that the wording

“it is reasonably possible may”

in both Clauses 3(2)(a) and (b) would be replaced with “is likely to”, which in this context we see as meaning a real possibility. In order to ensure consistency across the clause, Amendment 13 also updates the relevant wording in Clause 3(3).

The Government have tabled amendments in response to a point raised in Committee by the noble Lord, Lord Pannick. These would add protections for lawyers, ensuring that any genuine legal activity will not be captured under the Clause 3 offence in the Bill. I beg to move.

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

My Lords, I thank the Minister for the helpful explanation of the many government amendments in this group. I thank him and the Government also for the considerable movement they have made in response to criticisms made by me and many others at Second Reading and in Committee of the breadth of the offences under Part 1. We are very grateful to the Government for the comprehensive way in which they have listened to our criticisms and moved towards positions that we have taken.

In particular, the troublesome phrase “ought reasonably to know” has been clarified by the qualification that what a defendant ought reasonably to have known falls to be judged having regard to other facts known to that defendant. Furthermore, in Clause 3, as the Minister explained,

“conduct that it is reasonably possible may materially assist a foreign intelligence service”

becomes conduct that “is likely to” materially assist a foreign intelligence service.

I welcome the new strengthened review provisions introduced by the new clause proposed in Amendment 85, in place of the old Clause 56. These and other concessions in the amendments moved by the Government allay many of our concerns.

However, there is one area left untouched that we say is still completely wrong: the failure to tighten up the definition of the

“interests of the United Kingdom”.

That is the subject of our Amendments 2 and 3, and the corresponding amendments wherever the phrase

“safety or interests of the United Kingdom”

appears. I note the word “or”: the interests of the United Kingdom alone are enough to qualify. It is principally in support of those amendments that I speak now.

We are concerned about the interests of journalists, and that is the title of this group. I do not accept what the Minister said when he suggested that it was permissible to rely on the fact that journalists have not in the past been prosecuted under security legislation. That may as a matter of fact be true, but it is neither safe nor good legislative practice to rely on it without tightening up the legislation so as to prevent such prosecutions succeeding.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall be very brief. I thank the Minister for his explanation of the Government’s amendments. We recognise that they have come a long way since Committee. The amendments in this group seek to address the unintended consequences of offences for journalists and NGOs. Concerns have been raised throughout the Bill that the legitimate activities of journalists, such as the possession of leaked information, could lead to their prosecution. The main focus of today’s debate is Amendment 18 from the noble Lord, Lord Black. It aims to give a specific offence, whereas our Amendment 79B calls for an assessment of the impact of this group.

Given the significant concessions made by the Government, I will not divide the House on Amendment 79B and we will abstain on Amendments 18 and 72 if they are moved to a vote. However, I understand the point made by the noble Baroness, Lady Stowell, when she said that she would listen to the Minister, deliberate and see what will be done. I do not know whether the noble Baroness, Lady Jones, will press Amendment 18 to a vote even if the noble Lord, Lord Black, chooses not to. Either way, the Labour Party will abstain on those votes.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who have spoken in this debate for their very warm words. The strength of opinion highlights how important journalistic freedom is, and the Government take it extremely seriously. Whistleblowing will be dealt with in the next group, so if the noble Lord, Lord Purvis, allows, I will not deal with it in my response.

I am very grateful to my noble friend Lord Black for his amendment and for his general comments in support of this Bill. As I have said, we have listened to concerns raised by the media sector and noble Lords. The Government’s amendments are a direct response to them. I will endeavour to provide the clarity that my noble friend Lady Stowell asked for.

On my noble friend Lord Black’s amendment, the Government cannot accept a defence linked to the definition of a recognised news publisher. Rather than taking activity out of scope, the defence would act as a way for foreign powers, particularly those seeking to cause the UK harm, to avoid prosecution under this clause and engage in harmful espionage activity. If a journalist is deliberately colluding with a foreign intelligence service in relation to their UK-related activities, such as by revealing intelligence capabilities that could be exploited by that intelligence service, it is absolutely right that they should face criminal sanction.

I acknowledge that the amendment seeks to provide a targeted protection for journalists by referencing “a recognised news publisher”. The Government have serious concerns that any individuals working under the cover of journalism in foreign media organisations operating in the UK would be able to abuse this provision. Even if hostile state actors did not currently use journalistic cover to engage in espionage, having a defence such as this would almost certainly encourage them to do so. This defence would apply even if the conduct in question was probably against the public interest. This is simply not acceptable; it would give foreign states a back door to commit espionage. Accordingly, the Government cannot accept this amendment and I ask my noble friend not to move it.

However, I want to reassure the media sector that publication of an article that was critical of the UK Government, and which might incidentally be capable of assisting a foreign intelligence service, would not fall within the scope of this offence; nor would the handling of materials in the course of genuine journalistic activities, nor likely the other offences in this Bill. For an offence to be committed under Clause 3, an individual would need to engage in conduct intending

“to materially assist a foreign intelligence service”,

or know, or should have known given the information they had at the time, that it was likely that such conduct would do so.

The Government may profoundly disagree with the conclusions of some journalists, but we will not hide behind the criminal law to suppress genuine competing views and it is almost inconceivable that genuine journalism will be caught within the threshold for criminal activity. My noble friend raised some specific examples and there are many—for example, those relating Snatch Land Rovers a few years ago—but the Government do not consider that the publication of an article that was critical of the UK Government, and which incidentally might be capable of assisting a foreign intelligence service, would fall within the scope of this offence. I think it is worth repeating that.

Many of the examples that have been provided in various articles are stories which relate to terrorism. No journalist has been prosecuted for an offence under terrorism legislation. Even where examples are relevant to state threats activity, no journalist has been prosecuted for an offence under the Official Secrets Act. This Bill will be no different and the Government do not accept the view that it criminalises the activity described in the media.

The test of material assistance is key. To be “material”, the assistance to the foreign intelligence service must be important, considerable or in a significant way. As with all criminal offences, it is the specific circumstances of the case that will be important and will be a matter for the prosecuting authorities, but we would expect prosecutions to involve those with known links to foreign intelligence services, including evidence of a relationship, tasking or payment. Absent these links, the Government struggle to envisage even the most provocative piece of journalism meeting the threshold for the offence.

The noble Lord, Lord Purvis of Tweed, noted the Statement made last week on Iran International, and many noble Lords will have read it; it highlighted the potentially lethal operations of the Islamic Revolutionary Guard Corps taking place in the UK. Far from criminalising the important work of journalists, this offence is intended to protect Iran International, and others who live and work here, from such direct attacks on our people and values.

I turn to amendments tabled by the noble Lord, Lord Marks, with regards to security or defence interests under Clauses 1, 3, 4, 8, 12 and 14. These amendments seek to narrow the definition of “interests of the UK” to ensure a focus on the protection of national security and defence interests, alongside economic security interests. Similar amendments were tabled in Committee, so I will reiterate the concerns the Government continue to have with these changes, as they remain relevant. Narrowing the interest element to cover only security or defence interests significantly moves away from the “safety or interests of the UK” test that already exists and is understood within current espionage legislation. I am afraid these amendments move away from the status quo by creating a test with an unduly narrow focus on national security. While the noble Lord importantly made specific reference to interests pertaining to the UK in its economic security, these amendments continue to not include other critical UK interests relating to public health or, for example, the preservation of our democracy.

The noble Lord, Lord Marks, referred to the case of Chandler v DPP, as did his colleague the noble Lord, Lord Purvis. “Safety or interests of the UK” has been considered by the courts to mean the objects of state policy, determined by the Crown, on the advice of Ministers. We expect this interpretation to carry forward to the new legislation and there are safeguards in place to prevent the Government using this legislation inappropriately—for example, by deciding that somebody is acting against government policy but where there is no national security impact.

Each offence under this legislation includes a test that must be met in order for the offences to be committed. For example, for a person to commit a Clause 1 offence, they must obtain or disclose information that is protected for a purpose

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

and the activity must be conducted for, on behalf of or with the intention to benefit a foreign power. This limits the type of conduct capable of being caught under this offence, and in particular the foreign power condition ensures that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.

I now turn to Amendment 72, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and signed by the noble Lord, Lord Pannick. The most concerning consequence of this amendment is that where a state threats actor, acting under a proxy, has been engaged in harmful activity, which was an offence under the Bill, they would not commit an offence even if it could be shown that they were receiving specific funding in relation to that activity from a foreign power. The House will note the references to “state threats”, “foreign powers” and “national security”. Much as the amorous adventures of Matt Hancock may be of interest, clearly none of those falls in the scope of this offence.

It is no secret that those with hostile intent try to hide their activities through genuine means, and through this amendment there is a real risk that they could operate through proxies in order to make it more difficult to be prosecuted. It is therefore clear to see that narrowing the scope of the foreign power condition will have a damaging impact across the Bill. The Government considers this amendment would create unnecessary loopholes for state actors to exploit.

I would like to remind the House that the Government amended Clause 31(2)(c) in the other place to put it beyond doubt that there needs to be a clear link between the conduct and any assistance or funding from a foreign power for the condition to be met. It is the Government’s view that this puts the focus on the foreign power, ensuring that financial or other assistance from the foreign power is caught only when it is provided to enable the person to carry out the conduct, not when it is just any financial or other assistance.

I would also like to make it clear that Clause 31(2)(d), which concerns activity carried out in collaboration with, or with the agreement of, a foreign power, requires the foreign power to be actively involved in that collaboration or agreement; it does not cover cases where a person’s activities align with state objectives. The Government therefore ask the noble Baroness, Lady Jones, not to press her amendment.

To conclude, as all speakers have noted, the Government have moved a very long way in ensuring that journalistic freedoms are not being unduly encroached in this Bill, so I hope noble Lords will accept our amendments and withdraw or not press theirs.

[Lord Black of Brentwood (Con)]

Before my noble friend sits down, I will offer one point of clarification. I will of course respond to the chair when called to do so after the next group, but I want to say that I am very grateful for the assurances he has given about the scope and intent of the Bill with regard to responsible reporting. My noble friend has made clear that Parliament’s intent in passing the Bill is not to interfere with the free press or investigative journalism and, on that basis, I will be withdrawing my amendment.

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Moved by

[Lord Sharpe of Epsom]

7: Clause 2, page 2, line 17, after “or” insert “having regard to other matters known to them”
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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Moved by

[Lord Sharpe of Epsom]

9: Clause 3, page 3, line 25, leave out “it is reasonably possible may” and insert “is likely to”
Member's explanatory statement
This amendment changes the test for when a person commits an offence under Clause 3(2).

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Moved by

[Lord Sharpe of Epsom]

13: Clause 3, page 3, line 30, after “may” insert “be likely to”
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 3, page 3, line 25 and his second amendment to Clause 3, page 3, line 27.

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Moved by

[Lord Sharpe of Epsom]

16: Clause 3, page 4, line 13, at end insert—
“(ba) as a lawyer carrying on a legal activity, or”Member's explanatory statement
This amendment creates a defence to the offence in Clause 3 for lawyers carrying on legal activities.

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Moved by

[Lord Sharpe of Epsom]

19: Clause 3, page 4, line 33, at end insert—
““lawyer” has the meaning given by paragraph 5(3) of Schedule 15;“legal activity” has the meaning given by paragraph 5(4) of Schedule 15;”Member’s explanatory statement
This amendment defines terms used in Lord Sharpe’s amendment to Clause 3, page 4, line 13.

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Moved by

[Lord Sharpe of Epsom]

20: Clause 4, page 5, line 4, after “or” insert “having regard to other matters known to them”
Member’s explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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Moved by

[Lord Sharpe of Epsom]

24: Clause 5, page 5, line 29, after “or” insert “having regard to other matters known to them”
Member’s explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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Moved by

[Lord Sharpe of Epsom]

30: Clause 7, page 8, line 1, after “a” insert “United Kingdom”
Member's explanatory statement
This amendment clarifies that “Crown interest” includes interests belonging to a government department of the United Kingdom only.

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Moved by

[Lord Sharpe of Epsom]

35: Clause 11, page 10, line 21, leave out “prove” and insert “show”
Member's explanatory statement
This amendment reduces the burden of proof on the defendant from a legal burden to an evidential burden.

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Moved by

[Lord Sharpe of Epsom]

37: Clause 12, page 10, line 33, after “or” insert “having regard to other matters known to them”
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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Moved by

[Lord Sharpe of Epsom]

40: Clause 13, page 12, line 11, leave out subsection (8)
Member's explanatory statement
This amendment removes an amendment to the Online Safety Bill which makes an offence under Clause 13 a priority offence.

[Lord Sharpe of Epsom (Con)]

My Lords, Amendments 40, 41 and 50 relate to the offence of foreign interference.

Amendment 40 makes a procedural and technical tweak to address changes to the timetables of this Bill and the Online Safety Bill. The addition of foreign interference to the list of priority offences in Schedule 7 to the Online Safety Bill is government policy, which has been agreed at every stage of this Bill since its introduction. Designating foreign interference as a priority offence under the Online Safety Bill would disrupt state-backed disinformation targeted at the UK through the duties imposed on platforms by the relevant provisions in the Online Safety Bill.

However, now that the National Security Bill has overtaken the Online Safety Bill in its parliamentary passage, we must address the procedural challenges posed by this change to respective timetables. Government Amendment 40 will remove the reference to the Online Safety Bill from Clause 13(8) of the National Security Bill. The Government will then seek to add the offence of foreign interference to Schedule 7 to the Online Safety Bill via an amendment to that Bill. The effect of this amendment will be exactly the same as the current approach; it is simply the change in timetabling that means this amendment is necessary.

Government Amendment 41 clarifies the scope of the foreign interference effect contained within Clause 14(1)(a) to ensure it is not misinterpreted. Foreign interference includes interference with rights and freedoms that are protected under domestic law, such as freedom of speech. We know that foreign states have sought to intimidate or threaten diaspora communities with punishment to prevent them engaging in lawful protest activities. We want such activity taking place in the UK to be covered by the offence of foreign interference. Government Amendment 41 simply changes the wording in the offence to “in the United Kingdom” as opposed to

“as it has effect under the law of the United Kingdom”.

This will ensure that it is not misinterpreted to have a broader effect than we intend. It does not change our policy or affect the operational utility of the offence.

Amendment 50 is minor and does not introduce new policy. It simply reinforces the Government’s intention behind what is originally meant by “political decisions”.

Some concerns have been raised that references to proceedings in Parliament in both the offence of foreign interference and the foreign influence registration scheme risk creating unhelpful ambiguity about the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights. The Government’s position is that such references did not and could not displace provisions in the Bill of Rights and were not intended to do so. However, we have amended the provisions to ensure there can be no suggestion of interference with privilege.

To address these concerns, government Amendment 48 removes references to proceedings of the UK Parliament and devolved legislatures from the definition of “political processes”. A key element of foreign interference is the infiltration of our democracy, including the institutions and processes which uphold our democracy. The other amendments we have tabled therefore seek to ensure that the offence still protects against such interference.

Amendment 49 adds to the definition of “political processes” a reference to

“the activities of an informal group consisting of or including members of”

the relevant legislatures of the United Kingdom. The policy intention remains the same—to capture foreign interference in Parliament targeted at the heart of our democracy—but we are achieving it in a slightly different way. I will briefly explain how we will do this.

The majority of what we wish to capture in relation to interference with Parliament will be covered by the effect in Clause 14(1)(b)—the limb relating to public functions—as MPs and other officials within Parliament will be exercising their public functions. It is right that we seek to criminalise activity where, for example, somebody is acting for a foreign power and threatens violence to affect how a person exercises their public functions.

However, with this amendment we ensure that we also capture activity that is part of our democratic processes but which does not have official status within Parliament. We have therefore added reference to informal groups, which will include APPGs, to the definition of “political processes”. Foreign powers seeking to interfere in political processes through those who do not have public functions—for example, an external secretariat—will continue to be caught by the offence.

I turn briefly to government Amendments 42 and 44, which give effect to the new approach I have outlined, with Amendment 44 relating to the “legal processes” limb. They give effect to the new approach such that those interference effects apply otherwise than in the exercise of public functions. Government Amendments 43 and 47 are consequential amendments following from the change in definitions.

Taken as a whole, the amendments do not introduce new policy but simply reinforce the existing policy on the interference from foreign states that this offence is designed to protect against. I therefore ask noble Lords to support the inclusion of these amendments and beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak to Amendment 51, which stands in my name and those of the noble Lord, Lord Wallace of Saltaire, the noble Baroness, Lady Hayter of Kentish Town, and my noble friend Lord Evans of Weardale.

This is about transparency. When the electors go to an election, obviously they consider the policies that are placed before them. They also consider the personalities that are placed before them, because they are voting for an individual to carry out the important and valuable role of their Member of Parliament. They also should be entitled to enough transparency to judge the ethical matrix in which each political party operates, as represented by the individuals who stand as candidates. This moderate and temperate Amendment 51 is an attempt to improve the knowledge that voters have about the ethical matrix of the political parties that stand behind the candidates they are able to vote for and have to choose from.

We know that there are problems about the ethical matrix of political parties. Sometimes it is not their fault, because outside forces, hostile actors from foreign countries, make interventions into elections—for example, via the internet—in an attempt to slant the vote in one direction or another. However, there is also a serious risk—I accuse no party of impropriety in this respect, at least for the purposes of this contribution to your Lordships’ debate—that foreign actors, foreign powers, may seek to influence an election, for example by making substantial donations to that party’s election fighting fund which enable it to fight the election at an advantage compared with other parties.

I will not go back to my days as a very happy Liberal and then Liberal Democrat MP and talk about the disadvantage we always started from because we had less money than the other parties. However, we were always worried, in those days at least—I am sure it is still the same today—by contributions that might have come from foreign powers and that would give an even greater advantage, concealed from the electorate, to those political parties.

So what this amendment seeks to do is protect us from the likes of Putin’s cronies, who might, one way or another, find their way to dinners, contribution events and even meeting people in this great building. We seek to establish a register. In effect, each political party would have to create a policy statement which meant that they were obliged to disclose at least the outline of contributions made by a foreign power—we are not talking about rich foreigners or wealthy businesspeople but about a foreign power which has a political reason for trying to influence the result of an election, either made directly or through an intermediary.

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[Lord Coaker (Lab)]

My Lords, I rise briefly to say that we very much support Amendment 51 in the name of the noble Lord, Lord Carlile; were he to push it to a vote, we would certainly support him in that Division.

I do not want to repeat much of what has been said by my noble friend Lady Hayter and the noble Lords, Lord Carlile, Lord Wallace, Lord Evans and Lord West. However, I think that the noble Lord, Lord Evans, was right to say that, although this is a modest amendment, its consequences are quite serious. There is no doubt that people are concerned about some of the issues that they have read about in the papers around foreign interference in elections and the funding of political parties. One of the things that we often debate in this House is confidence in our democracy and democratic system, including the threats to them and the erosion of that confidence. Sometimes, these may be small steps but they are important ones that can contribute in our trying to do all we can to protect our democracy. People are worried about foreign interference in elections and the integrity of our democratic system.

It is right to point out, as the noble Lord, Lord Evans, did, that, through this Bill, we are requiring significant steps to be taken by businesses, organisations, industry, financial services and all sorts of other bodies to ensure that they conform to certain regulations that protect our national security. It would be right for them to ask, “Why is there one rule for us but another for political parties?” It is quite right that this amendment is supported; I hope that the noble Lord, Lord Carlile, will seek to test the opinion of the House and that his amendment is supported by the majority of Members, because it is an important step in protecting the integrity of our democracy in the way that noble Lords, particularly my noble friend Lady Hayter on the Labour Benches, pointed out.

Having said that, I want to ask one practical question with respect to many of the amendments that the Government have brought forward, which, by and large, we support. I want to deal with Amendment 49, the explanatory statement for which says:

“This amendment adds to the definition of ‘political processes’ the activities of groups such as all party parliamentary groups.”


I understand the bit about all-party groups but the implication there is in “such as”. Are the Government saying that the amendment is relevant to other groups? If so, can the Minister explain that to us?

With that, as I say, I very much support Amendment 51 in the name of the noble Lord, Lord Carlile, because it is very important.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken on this group.

I will start, if I may, by addressing the question from the noble Lord, Lord West, by repeating something that I said in my opening speech; I think it goes some way to answering him. The majority of what we wish to capture in relation to interference with Parliament will be covered by the effect in Clause 14(1)(b)—the limb relating to public functions—as MPs and other officials in Parliament will be exercising their public functions. It is right that we seek to criminalise activity where, for example, somebody is acting for a foreign power and threatens violence to affect how a person exercises their public functions. I hope that answers his question.

In answer to the question from the noble Lord, Lord Coaker, about Amendment 49, let me say that he is completely right. The reference to

“the activities of an informal group”

in this amendment is, as I think noble Lords know, designed to capture interference activities in APPGs by foreign powers. We are seeking to capture interference whether or however any person participates in the activities of these informal groups. We expect that to cover MPs and people external to Parliament and government who participate in the actions of such groups, but we also envisage informal groups to include things such as “friends of” groups. The use of the term “acting in that capacity” ensures that we do not capture things such as parliamentary book clubs but instead focus on those caught, such as the 1922 Committee, although they could also be covered by the public functions limb of the test. I hope that clears this up.

I know that Amendment 51 is a duplicate of a previous amendment, now tabled by the noble Lord, Lord Carlile. The Government do not believe that this amendment is necessary, I am afraid. I was going to quote myself and say again that UK electoral law already sets out a stringent regime of controls, but I am slightly more reluctant to do so after hearing the comments from the noble Lord, Lord Evans. However, we believe that our regime ensures that only those with a genuine interest in UK elections can make political donations and that political donations are transparent.

I will go into more detail on this point, if I may, because I believe that the noble Lord’s ethical matrix is already in existence. It is already an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already report all donations over a certain value to the Electoral Commission; these are then published online for public scrutiny. Political parties are by law required to undertake reasonable steps to verify whether a donor is permissible and obtain their relevant details for the reporting requirements. Donations that do not meet the permissibility tests or are unidentifiable must be reported and returned to the Electoral Commission, which also produces guidance outlining how the recipient of a donation can undertake these checks.

As I say, UK electoral law already sets out a regime of donation and spending controls to safeguard the integrity of our democratic processes, so only those with a genuine interest in UK electoral events can make political donations; they include UK-registered electors, UK-registered companies, trade unions and other UK-based entities, as well as otherwise eligible donors such as Irish citizens who meet prescribed conditions and can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations that are not from a permissible or identifiable donor. The failure to return such a donation either to the donor or, as I just described, to the Electoral Commission within 30 days of receipt is an offence; any such donations must also be reported to the Electoral Commission. The Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.

The transparency of electoral funding is obviously a key cornerstone of the UK’s electoral system. All political parties recognise that third-party campaigners and candidates must record their election spending and report it to the Electoral Commission or their local returning officer; that information is publicly available. For transparency, all donations to political parties and campaigners must be recorded and certain donations must be reported to the Electoral Commission; as I said, these include donations from impermissible donors and donations from the same permissible source that amount to over £7,500 in one calendar year. To ensure transparency, donation reports are published online by the commission for public scrutiny.

To register as an overseas elector, a British citizen has to present ID. However, it is a long-standing principle first introduced by the Committee on Standards in Public Life in 1998 that, if you are eligible to vote for a party in an election, you are also eligible to donate to that party. We believe that overseas electors are important participants in our democracy, but it is only right that they should be able to spend in UK elections in the same way as other UK citizens registered on the electoral roll.

I think that this is a reasonably comprehensive set of rules. There may be some debate as to whether it qualifies as a stringent regime but the fact is that donations to political parties from foreign powers, whether they are made directly or through an intermediary, are illegal. Political parties already have a legal duty to check that all donations they are offered are permissible.

In closing, I very much thank noble Lords for engaging so constructively in this debate. I ask the noble Lord, Lord Carlile, not to press his amendment in this group and ask noble Lords to support the Government’s amendments.

[Lord Wallace of Saltaire (LD)]

Before the Minister sits down, I just want to check one thing with him. He said that overseas electors will have to present ID. I was involved in the passage of the now Elections Act, which does indeed provide stronger, more limited ways in which correct ID has to be presented by people voting in person in British elections. However, I do not recall extra requirements around the presentation of ID for people who are resident overseas and wish to vote.

[Lord Sharpe of Epsom (Con)]

I think that I made it reasonably clear that to register as an elector overseas, you must present ID.

Amendment 40 agreed.

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Moved by

[Lord Sharpe of Epsom]

41: Clause 14, page 12, line 23, leave out “as it has effect under the law of” and insert “in”
Member's explanatory statement
This amendment clarifies the scope of subsection (1)(a).

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Moved by

[Lord Sharpe of Epsom]

47: Clause 14, page 12, line 34, after “(1)(d)” insert ““relevant”
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 14, page 12, line 27.

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Moved by

[Lord Sharpe of Epsom]

52: Clause 17, page 15, line 18, after first “or” insert “having regard to other matters known to them”
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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Moved by

[Lord Sharpe of Epsom]

55: Schedule 2, page 71, line 15, at end insert—
“(v) Schedule 3 (disclosure orders);(vi) Schedule 4 (customer information orders);”Member's explanatory statement
This amendment adds offences under Schedules 3 and 4 to the list of offences to which the powers in Part 1 of Schedule 2 do not apply.

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Moved by

[Lord Sharpe of Epsom]

64: Schedule 6, page 124, line 5, at end insert “or, in Northern Ireland, Article 53(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12))”
Member's explanatory statement
This amendment adds a reference to Northern Ireland legislation to a defined term.

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[Lord Coaker (Lab)]

I could not agree more with the noble Lord, and that is why it is so incredible that no Prime Minister has discussed that with the committee since 2014. I say this in relation to my noble friend Lord West’s points about the failure of discussion and people’s failure to involve the committee at an early stage. Had that been done, we would have avoided much of the debate and controversy over Clause 30 or, now, government Amendment 66. My noble friend Lord West mentioned this on behalf of the committee, and I mentioned and highlighted yet again the failure of the Prime Minister to meet it since 2014, which is simply and utterly unacceptable. Something needs to be done about it, and the Prime Minister needs to hear this—I know that the Minister will take this forward.

This is a really serious matter. I could not believe it when I read it, and I do not believe that many noble Lords here would either, as the noble Lord, Lord Beith, reminded us. According to the report, this was a regular occurrence:

“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work”.


But, despite repeated requests for suitable dates, we are yet to receive a response. This is unacceptable, and it is why we get the sort of situation that we had with Clause 30.

Notwithstanding that, I thank the noble Lord the Minister and the Armed Forces Minister for their engagement in bringing forward Amendment 66, which is a considerable improvement on what went before. I note the change from automatic exemption to the reasonableness defence. No doubt the Minister can address the issues and questions that my noble friend Lord West raised on proportionality and other areas. It is important that the point of the noble Lord, Lord Anderson, is also addressed. With that, we welcome Amendment 66, but we also look forward to the reassurances that my noble friend Lord West seeks on behalf of the Intelligence and Security Committee.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who spoke in this debate on Clause 30, the Serious Crime Act 2007 amendment. Before getting into the detail, I very much thank the noble Lords, Lord Beith, Lord West, Lord Ponsonby and Lord Purvis, and the noble Baroness, Lady D’Souza, for their amendments tabled in advance of today’s proceedings. I also thank the noble Lords, Lord Anderson and Lord Carlile, who have consistently shared their time and expertise with me and my team, across a range of national security matters.

I also extend my gratitude to the Intelligence and Security Committee, which recently took the time to write to the Home Office on this measure and cast a keen and critical eye, with officials, over the Government’s amendment tabled for today. I carefully noted the comments of the noble Lord, Lord West, as did my right honourable friend the Security Minister, who sat on the steps when he made them. I will obviously make sure that we reflect on that internally. I say to the noble Lord, Lord Coaker, that my noble friend the Leader of the House heard his comments, and I am sure he will reflect them back to the Prime Minister, but I am not responsible for the Prime Minister’s diary, so I cannot go further than that at this point. However, we will return to this subject in group 12, when the ISC MoU will be debated.

The Government’s shift in approach on the SCA amendment reflects our maintained commitment to ensuring that individuals working for UKIC and the Armed Forces are protected when conducting their proper activities in service to this country. The Government’s amendment replaces Clause 30 with a new clause that provides a defence for acts that are offences under Part 2 of the SCA by virtue of the extraterritorial provisions in Schedule 4. This defence would apply to those carrying out the functions of UKIC and the Armed Forces in supporting activities overseas; that is, it will be a defence for a person to show that their act was necessary for the proper exercise of a function of an intelligence service or the Armed Forces. I will shortly go into more detail on the Armed Forces, at the behest of my noble friend from the Ministry of Defence, so please bear with me.

As noble Lords will be aware, the current reasonableness defence in Section 50 of the SCA would cover encouraging or assisting crimes domestically. We believe that it is right that this new defence is limited to where UKIC and the Armed Forces are supporting activity overseas. The territorial applicability of this measure is identical to that of the original clause. This is because the acute issue caused by the SCA offences, and therefore justification for this amendment as presented to the ISC, relates to support to key international partners’ activity overseas.

The defence provides UKIC and the Armed Forces with more reassurance than the current reasonableness defence, in that the defence is based around the proper exercise of the functions of UKIC and the Armed Forces, rather than the more subjective requirement of proving “reasonableness”. We must remember that the tasks we ask these individuals to undertake, and the operational arrangements we have with our international partners, are ever more complex.

We still do not think it is appropriate that a potentially junior member of the agency or Armed Forces should be faced with the legal burden of proving that their activities were reasonable. Instead, the new defence imposes an evidential burden of proof on the individual to raise the defence. Once the defence has been raised, the legal burden would be on the prosecution to disprove it. It must be remembered that this amendment does not change the position for an individual who acts outside of those proper functions; they would remain liable for any wrongful acts. I believe that this strikes the right balance of providing appropriate protection while also having a clear route by which there can be proper legal consideration of any potential wrongdoing.

Noble Lords will now see an explicit responsibility on the heads of agencies and the Defence Council to ensure that their respective organisations have in place arrangements designed to ensure that acts of a member of their service that would otherwise be an offence under the SCA by virtue of Schedule 4 are necessary for the proper exercise of their functions. To be clear, that means that an act could not be considered within the “proper” exercise of a function of an intelligence service if it does not comply with the “arrangements” set by the relevant heads or the Defence Council.

In addition, the Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—

[Lord Beith (LD)]

On that point, there is a world of difference between the necessary task of a Minister satisfying himself that adequate arrangements exist within an agency—indeed, such arrangements have existed for years—and the Secretary of State being made aware of a potential action and required to approve of it, or prevent it from happening, once he has considered the major political implications it might have. If the system does not extend to that role in relation to individual actions, it will be severely deficient.

[Lord Sharpe of Epsom (Con)]

I will turn to ministerial responsibility if the noble Lord will bear with me. In fact, I am going to do it now. The Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. I have already said this, but there is more to say on the subject. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections and regular scrutiny by the ISC. I will return to this in a second.

I now turn directly to the amendments tabled by the noble Lords, Lord Beith, Lord Anderson and Lord Carlile, which, in short, seek to do two related things: to restrict the activities covered by the defence for the MoD to those which are related to intelligence activities, and—in the case of the amendment of the noble Lord, Lord Beith—to restrict the defence to apply to the MoD only where it acts for UKIC.

I will now speak on behalf of the MoD and my noble friend Lady Goldie, who has sat through this debate. With reference to the Armed Forces, the amendment will enable more effective co-operation with our international partners. It will address operational challenges and remove the personal risk that trusted and dedicated individuals face for carrying out their proper official duties, whether as serving members of our Armed Forces or as intelligence officers within our UK intelligence community.

The amendment is principally concerned with addressing risks arising within an intelligence-sharing context, a primary activity of UKIC. What is perhaps less understood is the criticality of intelligence activity from an Armed Forces perspective, with intelligence sharing often forming a necessary part of wider co-operation with our allies. I assure noble Lords that the amendment is about clarifying the law and removing liabilities which sit onerously with individuals going about their lawful and legitimate duties.

The UK is committed to the rule of law and we would never collaborate or share information with a foreign partner with the intention of supporting unlawful activity overseas, but the SCA amendment does not change that. All aspects of the activities of our Armed Forces will continue to be bound by the relevant law of England and Wales and of international law. There will be no change to the UK’s international legal obligations, including under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and on assisting an unlawful act under Article 16 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts.

This defence will apply only where activity is necessary for the proper exercise of a function of the Armed Forces, and any individual found to be working outside the proper functions of the Armed Forces will remain liable for those actions. Actions not in compliance with the MoD’s robust internal policies and processes, again such as the Fulford principles and the OSJA Guidance, which are designed to ensure that MoD officers do not knowingly support unlawful activity, would not be in the proper exercise of a function of the Armed Forces.

I turn to the amendment tabled by the noble Lord, Lord Anderson. My noble friend Lady Goldie thanks him for the opportunity to discuss this with him. I understand that, because of a technical omission, he may not move his amendment tonight, but my noble friend Lady Goldie has—

[Lord Anderson of Ipswich (CB)]

As a point of correction, the omission has been remedied and the amendment is on the supplementary sheet.

[Lord Sharpe of Epsom (Con)]

My noble friend Lady Goldie has not been able to discuss that with our right honourable friend the Secretary of State for Defence, who is currently abroad, but she undertakes to do that and to engage with him on his return.

I turn to the amendment in the name of the noble Lord, Lord West. I am grateful for his contribution at Second Reading, where he confirmed that the ISC recognised that the government amendment identified a legitimate problem. This proposed amendment seeks to insert proportionality into the defence we are proposing in Clause 30. The objective of proposed new Section 50A is to provide clarity on how an individual working for UKIC or the Armed Forces can defend against a case in which they face personal criminal liability for the SCA offences.

For the reasons outlined previously, the Government consider that the existing reasonableness defence in Section 50 of the SCA does not achieve this, given we would be asking a jury to consider what is reasonable in the complex operational circumstances in which our intelligence agencies and Armed Forces work with our international partners to protect the United Kingdom. The Government consider that inserting a proportionality requirement would have the same effect, in that it reduces the clarity of the defence, which not only does not achieve the objective of providing greater certainty to those who are carrying out vital work to protect us all but complicates a defence which is currently based on the functions of the organisations concerned. On that basis, we think that explicit reference is best left out of the defence, and we therefore cannot accept this amendment.

However, to be clear, considerations of proportionality are a crucial component of operational planning and delivery, and core to many of the legal frameworks with which UKIC and the Armed Forces are required to comply. Any joint working with a partner must be in accordance with domestic and international law, including relevant principles of reasonableness, necessity and proportionality. Where the intelligence services or Armed Forces do not apply proportionality consistently with their legal or policy obligations, that would not be a proper exercise of their functions. To be completely clear, a person’s lack of compliance with their legal and policy obligations could be considered by the prosecution and would impact the availability of the defence —that includes proportionality.

Arrangements in place ensure that UKIC and the Armed Forces apply rigorous safeguards, standards and internal processes for determining that activity is lawful and properly exercised. The arrangements include the following: operational decisions are recorded, taken at appropriate seniority and made with the benefit of advice from specialist legal advisers to ensure compliance with domestic and international law; all personnel receive mandatory training on their legal obligations; policy documents set out specific requirements for different activities, including what authorisations are required and how to decide whether activity is necessary, reasonable and proportionate. Compliance with these requirements ensure that acts are within the proper exercise of the functions of the organisation concerned.

Some of these policies have been published, such as the Fulford principles, where the passing and receipt of intelligence relates to detainees, the compliance of which is assessed by the Investigatory Powers Commissioner’s Office, as I have already noted. Arrangements can also go beyond pure legal considerations, with ethics counsellors in post to discuss the difficult decisions we sometimes take when balancing risk.

To go back to Secretaries of State, they are accountable for the work of the intelligence services and the Armed Forces in Parliament. A central part of their obligations will remain authorising the required operational activity at the appropriate time.

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[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.

[Lord Anderson of Ipswich (CB)]

The Minister has been helpful, but I hope he can be more specific. When does he think the encouragement or assistance of an overseas crime, conduct which is penalised by the Serious Crime Act 2007, might be necessary for the proper exercise of a function of the Armed Forces, other than in the intelligence context? For my part, I am quite prepared to accept that it may be necessary in the intelligence context; what I have not heard from the Minister is any suggestion of any other context in which it might be necessary, yet he asks me to withdraw my amendment, which would limit the application of the defence to the intelligence context. It may be that his answer will be in what I think he said about the noble Baroness, Lady Goldie, needing further time to consult ministerial colleagues, but if I am to withdraw my amendment, and those discussions have not yet taken place, what assurance can he give as to possibly bringing back the issue at Third Reading?

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[Lord Sharpe of Epsom (Con)]

My Lords, I go back to what I said to the noble Lord in previous debates on this subject: the activity is restricted to intelligence activity, and as such I believe that the amendment is eminently sensible. However, we cannot accept this current amendment, but the Government will take a very careful look at this apparent gap and will consider the best way to close it.

[Lord Beith (LD)]

My Lords, that was a very interesting final remark from the Minister. I hope it will prove to have some substance, otherwise we are left with legislation that I do not think can be interpreted in the way the Minister describes it. I am quite puzzled, but he has shown willing, so I hope he pursues it. I express my gratitude, particularly to the Minister for the Armed Forces for the care she has applied to this matter—we had a very detailed discussion with her and her officials—and to the Minister who is answering this debate, particularly for the amendment that gets rid of the awful Clause 30 and gives us something that is certainly a significant improvement in its place.

I still have perhaps three areas of particular anxiety in addition to the definitional point that the noble Lord, Lord Anderson, raised about “in support of intelligence”. One is the very fact that we are changing the law about what happens on a battlefield and what happens in a counterinsurgency, apart from the context of the discussion about the use of our Armed Forces in the non-intelligence world. This does not seem to be a good way to legislate. There would have been people involved in and engaged with the legislation if that is what it had been generally about, if it had been applying to the Armed Forces, but that is a rather unsatisfactory feature and not one that we can change at this stage.

I found what the noble Lord, Lord West, said about what happened between the ISC and the Home Office profoundly worrying. It really was disgraceful. I trust the accuracy of what he said and I am sure it can all be correctly documented, but that really is no way to deal with intelligence. Accountability for intelligence in the democratic context has always been quite difficult. The ISC has been developed over decades to provide a good mechanism to deal with that. When it is treated in that manner, it really is very serious and I hope the Minister has recognised that and is determined to go back to the office and really make a noise about this. It is just not acceptable and should not be acceptable to either House of Parliament.

My final worry, which I think can be resolved without statutory means but certainly remains, is the ambiguity about whether Secretaries of State will authorise significant measures that could fall within the scope of the new clause. In my view, it is an essential part of the system that agencies have the backing of a senior Minister when they engage in particularly difficult tasks, and that senior Ministers know what they are doing and are aware of what is being undertaken. If there is a political or legal risk, then Ministers should be aware of it. It is one thing to have a very good internal system—and I believe the agencies have good internal systems now—but quite another to be sure that, at the highest political level, there is both knowledge and authorisation. Frankly, if I were the head of an agency, which I have never been, my instinct would be to try to set up such a system, because otherwise the agency will always get the blame, even when the Secretary of State should have taken responsibility and might even have come to a different conclusion. I think that, over time, we need to make sure that Secretaries of State are sufficiently closely associated, otherwise they drift apart and agencies live in a world of their own. That is not how it should operate. But that, as I say, could be resolved without further legislation if there is determination to resolve it. On that basis, I beg leave to withdraw the amendment.

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Moved by

[Lord Sharpe of Epsom]

66: Leave out Clause 30 and insert the following new Clause—Offences under Part 2 of the Serious Crime Act 2007(1)Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) is amended as follows.(2)After section 50 insert—50AExtra-territorial offences: defence for intelligence services and armed forces(1)This section applies where a person is charged with an offence under this Part by reason of a provision of Schedule 4 (extra-territorial jurisdiction).(2)It is a defence for the person to show that their act was necessary for—(a)the proper exercise of a function of an intelligence service, or(b)the proper exercise of a function of the armed forces.(3)A person is taken to have shown that their act was so necessary if—(a)sufficient evidence of that fact is adduced to raise an issue with respect to it, and(b)the contrary is not proved beyond reasonable doubt.(4)The head of each intelligence service must ensure that the service has in place arrangements designed to ensure that acts of a member of the service to which a provision of Schedule 4 applies are necessary for the proper exercise of a function of the service.(5)The Defence Council must ensure that the armed forces have in place arrangements designed to ensure that acts of—(a)a member of the armed forces, or(b)a civilian subject to service discipline when working in support of a member of the armed forces,to which a provision of Schedule 4 applies are necessary for the proper exercise of a function of the armed forces.(6)The arrangements which must be in place by virtue of subsection (4) or (5) must be arrangements which the Secretary of State considers to be satisfactory.(7)In this section—“armed forces” means His Majesty’s forces (within the meaning of the Armed Forces Act 2006);“civilian subject to service discipline” has the same meaning as in the Armed Forces Act 2006;“GCHQ” has the meaning given by section 3(3) of the Intelligence Services Act 1994;“head” means—(a)in relation to the Security Service, the Director General of the Security Service,(b)in relation to the Secret Intelligence Service, the Chief of the Secret Intelligence Service, and(c)in relation to GCHQ, the Director of GCHQ;“intelligence service” means the Security Service, the Secret Intelligence Service or GCHQ.(3)For the heading before section 50 substitute “Defences”.
The arrangements which must be in place by virtue of subsection (4) or (5) must be arrangements which the Secretary of State considers to be satisfactory.””Member’s explanatory statement
This amendment replaces Clause 30 with a new Clause which provides a defence for extra-territorial offences under Part 2 of the Serious Crime Act 2007.

[Lord Sharpe of Epsom (Con)]

I beg to move.

Amendment 67 (to Amendment 66)

Tabled by

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Moved by

[Lord Sharpe of Epsom]

71: Clause 31, page 23, line 7, after “or” insert “having regard to other matters known to them”
Member’s explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a more wide-ranging debate than I was anticipating. The definition of a foreign power is an important issue. It was covered by the Minister in Committee, and I look forward to him expanding on what he said and particularly to address the points made by my noble friend Lady Hayter in her Amendment 74. I think I will leave it there because we have other business to deal with, and I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, and I will do my best to clarify all the points and answer all the questions that have been raised. First, I turn to government Amendment 76, which addresses concerns raised in Committee and in the report by the Joint Committee on Human Rights on the drafting of the third limb of the foreign power threat activity provision. This provision is a key part of the Bill which ensures that police have the powers they need in supporting investigations into state threats offences. The concerns raised were that support or assistance unrelated to the harmful conduct covered by foreign power threat activity under Clause 33(3) risked being caught under Clause 33(1)(c). That is not the Government’s intention, and this amendment puts it beyond doubt that the support or assistance must be in relation to the conduct covered by Clause 33(1)(a) rather than unrelated activity. I hope that addresses the concerns helpfully put forward by noble Lords in Committee and that this amendment is welcomed.

This group also includes Amendment 74 tabled by the noble Baroness, Lady Hayter of Kentish Town, and it relates to the meaning of a “foreign power”. The amendment seeks to remove

“a political party which is a governing political party of a foreign government”

from the definition. I would very much like to thank the noble Baroness for the constructive engagement we have had on this issue. I know her principal concern is with the effect of this clause on the foreign influence registration scheme, which of course we will be debating next week.

The foreign power condition applies right across the Bill and is crucial in order that the new offences in it, such as espionage, theft of trade secrets and sabotage, work effectively. Removing it here would remove it from those other offences too. The Government’s position, as the noble Baroness is aware, is that the inclusion of governing political parties addresses situations where there is a dominant political party, or parties, within a country, to such extent that it may be difficult to disentangle whether harmful activities have been carried out on the direction of the ruling party or the Government.

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[Lord Wallace of Saltaire (LD)]

My Lords, may I ask a question of clarification? I understand much more clearly what the noble Lord is saying: governing political parties are in effect acting as intermediaries for the state. However, certainly in the international relations which I have been engaged in over the last 40 years, many think tanks in other states also operate as intermediaries in that respect. In particular the Washington think tanks, which are very close to the Government, act as intermediaries, but foreign-funded ones in other democratic and non-democratic capitals often also do so. Should that not be included in the Bill for the same rationale that he has just given us on dominant political parties?

[Lord Sharpe of Epsom (Con)]

My Lords, ruling parties are the foreign power. As I have tried to be clear and have stressed twice now, registration will be required only where an individual or entity is directed by a foreign power—that is the condition. Therefore, if a think tank was being directed by a foreign power, the answer would be yes. If it was not, the answer would be no.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, does the Minister accept that an intermediary could be a conference-arranging organisation? If he is coming to that, I would be grateful.

[Lord Sharpe of Epsom (Con)]

I noted the noble Baroness’s questions about intermediaries, and I promise that I will address that.

I know that we have had some debate about what it means to be directed by a foreign power. I want to reassure all noble Lords that this is a high bar. The natural meaning of “direction” is an order or instruction to act. It is possible that such direction could be delivered in the language of a request but only where there is a power relationship between the person and the foreign power which adds an element of control or expectation to the request: for example, through a contract, payment, coercion or the promise of future compensation or favourable treatment. It is not enough for a foreign power to fund an activity, so generic requests, joint collaboration or simply an alignment of views, absent the power relationship, will not meet the test for direction.

I will quote directly from the letter I sent to the noble Baroness, Lady Hayter—I apologise for not sharing it more broadly with the House but I was cleared to send it only this morning:

“In terms of what activity would be registrable, we consider that where a parliamentarian is to be directed by a foreign governing party, for example, being paid or on the promise of favourable treatment, to influence Government Ministers or fellow parliamentarians, this would require disclosure under FIRS.”


I will come back to my quote in a second. I digress briefly into the subject raised by my noble friend Lord Balfe and his quick canter through the Stiftungen of Germany. We are in touch with the German Government on this issue and are grateful for their constructive engagement. We do not consider that, for example, the Konrad-Adenauer-Stiftung would constitute a foreign power under Clause 32 of the Bill. A person acting under the direction of such an institution would not be in scope of the foreign influence registration scheme. We will have another opportunity to debate these issues next Tuesday. Konrad Adenauer should be reassured that it is not covered.

I want to be clear that there is no requirement for the activity to cease, only for it to be transparent. In these circumstances, there is a strong national interest in greater openness on the influence of British politics by foreign powers. It should be clear not only to the Government, but to parliamentarians and to the public, where this influence is being brought to bear. FIRS seeks to address the gap, providing us all with more information about the scale and nature of foreign political influence in the UK.

I will answer the question from the noble Baroness, Lady Hayter, directly. In the example she described, the intermediary would have to register, if directed by a foreign power. The noble Baroness herself, or a foreign power, would not.

[Baroness Hayter of Kentish Town (Lab)]

This is at the heart of it. If the German SPD engaged somebody to set up a stall at our party conference, they would be directed, be paying and have a contract for it. This would then have to be registered. I have seen the draft regulations which the Minister kindly sent me. They would have to disclose which MPs they had invited to the event and all of that. As the Minister has just said, as soon as the intermediary—the conference arrangements organisation—is paid by an outside political party to organise this, according to the form that I have been sent, we would have to fill in our names. We may not be the ones registering, but it would be wholly disclosable. It has nothing to do with the Government nor with national security. It is a party-to-party issue. It is simply because they have used an intermediary—a conference arrangements organisation or interpretation.

I think it is clear and that we agree on this. I am not asking that we should be able to bring it back at Third Reading, but I am asking the Minister to leave a little chink of light. Having thought about it, in consultation with his colleagues, the Government might be willing to look at whether this is really what they want to achieve.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for her comments. I am more than happy to continue engagement on this subject.

The final amendment in this group, concerning the definition of a foreign power, was initially tabled in Committee and has been retabled by the noble Lords, Lord Marks and Lord Wallace. It seeks to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. I want to put it on record that we do not consider all foreign powers to be hostile. When this amendment was initially tabled, I put forth that the National Security Bill focuses on the harmful conduct undertaken by a person and not the foreign power they seek to benefit. I continue to believe that this is the right approach.

The Government do not seek to create gaps in the legislation which could allow states to act through proxies and thus undermine what the Bill seeks to do—to take necessary and appropriate action against harmful activity. Again, no doubt to groans, I will bring your Lordships’ attention to the case of Daniel Houghton. He is the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence service in 2010. If this amendment were to be accepted, and NATO states excluded from the definition of a foreign power, cases such as Daniel Houghton’s would not be captured by the offences and measures in the Bill. This would not be an appropriate outcome which could undermine the Bill. I believe that the Dutch came to us on this particular occasion and I commend them for it. I ask again that these amendments tabled by noble Lords be withdrawn.

[Viscount Stansgate (Lab)]

I do not want to detain the House. I asked whether the definition of a political party in Clause 32(1)(e) means all members of it or not.

[Lord Sharpe of Epsom (Con)]

I thought that I answered this when I talked about direction by a foreign power. If members of a political party are directed by a foreign power, they would be covered.

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[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.

[Lord Sharpe of Epsom (Con)]

My Lords, in answer to the question from the noble Lord, Lord Purvis, I cannot make any promises but I will certainly try. In answer to my noble friend Lord Balfe’s question, as I said in my initial answer to him, we have engaged extensively with the German Government.

[Lord Wallace of Saltaire (LD)]

My Lords, I am not convinced by the Minister’s argument. That he has to go back to the single case of Daniel Houghton shows the weakness of the ground on which he stands. We recall that case, which involved a Dutch-British dual national who was uncovered by our allies, the Dutch, with whom, of course, we have a close intelligence relationship as well as a number of other things; it was therefore resolved. No such things have happened with a hostile foreign power. If we have to go back to that case, it simply shows that there is not very much evidence on which the Government can make this argument.

Many of us who know that this is an important Bill and wish it well are concerned about the unnecessary offence given to friendly Governments. The Minister has not assured us that all our friendly Governments have been consulted and are happy with this Bill. I hope that, in informal conversations between now and Third Reading, he—or at least one of his Foreign Office Ministers who actually talks to other Foreign Ministers—will be able to assure us that we will not treat all foreign powers or contact with them on a similar basis.

On that basis, I will not divide the House but I remark that I am unsatisfied with the Minister’s response. I beg leave to withdraw the amendment.

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Moved by

[Lord Sharpe of Epsom]

76: Clause 33, page 24, line 29, leave out from “to” to end of line 30 and insert “a person (“P”), where the person who engages in the conduct—
(i) knows or believes P to be involved in, and(ii) engages in the conduct for the purpose of giving support or assistance to,”Member's explanatory statement
This amendment clarifies that conduct is only within Clause 33(1)(c) if it is for the purpose of giving support or assistance to conduct within 33(1)(a).

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Moved by

[Lord Sharpe of Epsom]

77: Clause 34, page 25, line 30, at end insert—
““information” includes information about tactics, techniques and procedures;”Member's explanatory statement
This amendment adds a definition of "information" for the purposes of Part 1 of the Bill.

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Moved by

[Lord Sharpe of Epsom]

78: Clause 37, page 27, line 26, at end insert—
“(e) Schedule 3 (disclosure orders);(f) Schedule 4 (customer information orders).”Member's explanatory statement
This amendment excepts offences under Schedules 3 and 4 from the requirement to obtain the consent of the Attorney General or Advocate General to proceedings for an offence under Part 1.

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Moved by

[Lord Sharpe of Epsom]

81: Leave out Clause 56.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s new Clause (Reviews: general). The new Clause provides for reviews of Part 2 and other provisions by the independent reviewer appointed under the new Clause, superseding clause 56.

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Moved by

[Lord Sharpe of Epsom]

82: Schedule 12, page 175, line 15, at end insert “or, in Northern Ireland, Article 53(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12))”
Member's explanatory statement
This amendment adds a reference to Northern Ireland legislation to a defined term.

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Moved by

[Lord Sharpe of Epsom]

85: After Clause 63, insert the following new Clause—
“Reviews: general(1) The Secretary of State must appoint a person (the “independent reviewer”) to review the operation of—(a) Part 1, except section (Offences under Part 2 of the Serious Crime Act 2007);(b) Part 2;(c) Schedule 3 to the Counter-Terrorism and Border Security Act 2019, except the functions of the Investigatory Powers Commissioner under Part 1 of that Schedule.(2) The independent reviewer—(a) must carry out a review of the operation of those provisions for each calendar year (an “annual review”), and(b) may carry out such other reviews of the operation of any of those provisions as they consider appropriate.(3) An annual review must be completed as soon as reasonably practicable after the calendar year to which it relates.(4) The independent reviewer must, by 31 January in each calendar year, inform the Secretary of State what (if any) reviews under subsection (2)(b) they intend to carry out in that year.(5) The independent reviewer must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.(6) On receiving a report under this section, the Secretary of State must lay before Parliament—(a) the report (but not any material removed under subsection (7)), and(b) a statement as to whether any material has been removed under that subsection.(7) The Secretary of State may, after consulting the independent reviewer, remove from the report any material whose publication the Secretary of State thinks would be contrary to the public interest, or prejudicial to— (a) national security,(b) the prevention or detection of crime,(c) the economic well-being of the United Kingdom, or(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the independent reviewer.(8) “Public authority” means a public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.(9) The Secretary of State may pay to the independent reviewer—(a) expenses incurred in carrying out the functions of the reviewer under this section, and(b) such allowances as the Secretary of State determines.”Member's explanatory statement
This new Clause provides for independent review of Parts 1 and 2 of the Bill, and Schedule 3 to the Counter-Terrorism and Border Security Act 2019. It is intended that this new Clause, together with new Clause “Reviews of detention under Part 1” will form a new Part of the Bill after Part 2.

Code of Practice for the Forensic Science Regulator

Lord Sharpe of Epsom Excerpts

Monday 27th February 2023 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Code of Practice for the Forensic Science Regulator.

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

My Lords, forensic science is vital to the investigation and prosecution of crime. Without high-quality forensic evidence entering the criminal justice system, our ability to fight crime would be compromised. We are fortunate in this country to have some of the world’s best forensic scientists, who deploy their considerable skills to help deliver justice, but we cannot rest on our laurels.

Public confidence in the criminal justice system is vital. This confidence can be undermined if quality standards in forensic science are not upheld or maintained. This Government believe that, in order to set appropriate standards, a degree of statutory regulation is required, which is why it has been long-standing government policy—since 2016, in fact—that the Forensic Science Regulator should have statutory powers. That is why the Government supported the Private Member’s Bill that became the Forensic Science Regulator Act in 2021.

The Act established the regulator as a statutory officeholder. It gives powers to the regulator allowing them to act, as a last resort, when they have reason to believe that forensic science activities are being conducted in such a way as to create a substantial risk to the course of justice. It also requires the regulator to produce a draft statutory code of practice. This code defines which forensic science activities will be regulated and sets out the standards that providers will be expected to meet. It is the first time that a statutory code regulating the provision of forensic science has been produced anywhere in the world.

This code has been through a comprehensive consultation process, which revealed broad support among the forensics community. In fact, 83% of respondents to the consultation, which included stakeholders from policing, the commercial sector, academia and the judiciary, expressed their support for the model of regulation set out in the code. By adhering to the code and complying with its requirements, forensics providers will ensure that the evidence they gather and present to the courts is of the highest quality, in turn helping to maintain public confidence in our systems.

In practical terms, this means that all forensics providers who deliver forensic science activities to which the code applies will have to declare compliance with the code. In addition, they may also need to attain accreditation and establish quality management systems for the activities they undertake. Non-compliance with the code will not in itself automatically mean that the evidence gathered will be inadmissible—it is always the courts who ultimately decide whether to accept evidence—but compliance with the code will reduce the risk of substandard evidence entering the system. Compliance with the code will make it far more likely that providers are producing high-quality forensic evidence to the courts. Compliance with the code will help protect the integrity of the criminal justice system and guard against miscarriages of justice.

I very much hope that noble Lords will support this code of practice, which I commend to the Committee. I beg to move.

[The Earl of Lindsay (Con)]

My Lords, I thank my noble friend the Minister for providing this opportunity to consider the Motion that the 2013 draft code of practice for the Forensic Science Regulator, laid before the other place on 26 January, be approved. I warmly welcome the Forensic Science Regulator’s code of practice as an important further step in ensuring the quality, consistency and integrity of our forensic sciences across England and Wales. The code builds on the non-statutory codes of practice and conduct issued by the previous regulator and incorporates much of their content.

I particularly welcome the code’s recognition of the importance of accreditation against internationally recognised standards in driving quality improvement, trust and confidence in the critical services of forensic providers. Technical competence and consistency across the mixed economy for the provision of forensic science services should be a vital part of a fair and functioning criminal justice system. This code of practice will help achieve that.

I should declare an interest as the chair of the United Kingdom’s national accreditation body, UKAS, which is the sole national body recognised by government for the accreditation of organisations against nationally or internationally recognised standards. Accreditation provides assurance of the impartiality and competence of providers, which we can all agree are imperative in the criminal justice system. UKAS and the Forensic Science Regulator have been working closely since the FSR role was first created; together, we have achieved consistent success in improving standards through the accreditation of forensic science providers in both the private sector and police forces. UKAS will continue to work closely to deliver the vision of the Forensic Science Regulator with respect to compliance with standards and, through the accreditation of forensic providers, the demonstration of the appropriate competence of the practitioners undertaking this critical work.

I believe that this code of practice will support and encourage a culture of improvement and a commitment to quality, competence and impartiality across forensic science provision. I am delighted to add my support to its approval.

--- Later in debate ---

With that, we very much welcome the code and support the Government in its introduction.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all three noble Lords who have spoken in this short debate. I am grateful for their considered and constructive contributions.

I pay tribute to the Forensic Science Regulator for producing such a detailed and comprehensive code of practice. The code is a significant piece of work, as befits an instrument that will help to drive up quality standards. It is long, but builds on other non-statutory codes of practice and conduct and incorporates much of their content, meaning that much of its content will already be largely familiar to forensic science providers. The code sets out for the very first time definitions of forensic science activities and specifies which of those activities it applies to. As I said in my opening remarks, this is the first time that has been done—and not just in England and Wales; this is a world first.

I turn to some of the specifics that have been raised. I thank my noble friend Lord Lindsay for his positive remarks and for the UKAS perspective. I am sure he would acknowledge that accreditation for forensic science activities is not a panacea, but experience has shown that it raises quality standards by improving processes and ensuring that if failures happen then appropriate steps are taken. In addition, accreditation helps drive standardisation to support cross-force co-operation and efficiency.

It is fair to say that achieving accreditation takes time and resources, but evidence from non-accredited laboratories has always been open to challenge in court and there is a real risk of losing cases as a result, which goes some way to answering the question from the noble Lord, Lord Coaker.

Accreditation across the board helps to ensure a level playing field and consistent quality standards, which also goes some way to answering the questions from the noble and learned Lord, Lord Thomas, particularly those around impartiality and integrity. It is acknowledged that some forensic providers and police forces have failed to achieve accreditation across a range of forensic disciplines, which can cause miscarriages of justice, abandoned trials and so on. This code, together with the powers in the Act, will allow the regulator to issue compliance notices against forensic providers that are failing to meet the required quality standards.

In answer to the comments of the noble and learned Lord, Lord Thomas, about whether and how this will be supported by the forensic science—I hesitate to call it “industry”—caucus, as I said in my opening remarks, the office of the Forensic Science Regulator engaged in a statutory consultation which ran from 8 August to 31 October 2022. There were 110 responses with 3,000 comments from across the forensic science community—again, as I said—including from policing, academia, the judiciary and the commercial sector, with 83% of respondents overall expressing support. The private and commercial sector has actively been calling for regulation for a long time because it understands the value of quality and wants to compete on a level playing field. This is the crucial point: almost 80% of policing respondents expressed support. Based on those numbers, I think it will be largely self-enforcing. It is fairly obvious that the industry is going to be very excited about this progress.

The noble Lord, Lord Coaker, asked about the HMICFRS report that showed that digital forensics were perhaps a little left behind. We have invested around £10 million in this financial year—2022-23—in the new digital forensics programme in the Police Digital Service that will support forces through automation and better safeguard victims’ privacy and in other new technology to increase forces’ capacity to process digital devices. We are working very closely with the NPCC and other criminal justice system partners to understand clearly current national performance and implement the recommendations of the HMICFRS inspection report on digital forensics. The Home Office has undertaken a national data collection project which looks more widely at governance, operating models, resources, training, technical capabilities and funding, which all impact on the ability of the police to conduct timely investigations and provide high-quality forensic evidence to support CJS outcomes. However, I acknowledge that this is a rapidly evolving space, so I suspect this is a debate we will come back to at greater length in future.

In answer to the questions asked by the noble and learned Lord, Lord Thomas, about digital, about 90% of forces have some ISO 17025 accreditation for digital forensics, but no force yet has accreditation for all digital forensics activity. As I just said, significant progress is still required to meet full compliance. It is for that reason that the new statutory powers for the regulator are so important.

The noble Lord, Lord Coaker, asked about the impact assessment that was completed in 2021. It was an internal assessment for Home Office policymakers, but we will be very happy to publish that in due course.

None of this is sudden. It has been government policy for many years that providers should have accreditation for the forensic science activities they conduct. The previous non-statutory regulator regularly published timetables for providers to achieve accreditation, often giving several years’ notice. Since 2016, it has been official policy that the regulator should have statutory powers underpinned by a new statutory code. The Act received Royal Assent nearly two years ago. In answer to the question, the regulator did not expect all providers to be fully compliant by October. This is a grace period to allow those providers who are already well advanced to become formally accredited to the code before it comes into force.

I hope I have answered noble Lords’ question. Approval of the draft code of practice today will help pave the way for better and higher quality forensic science in the criminal justice system in England and Wales. However, that is not the end. The overriding need to maintain high-quality standards continues. The new powers that the Forensic Science Regulator Act provides, taken together with this draft code of practice, will help driven up quality standards, improve outcomes and maintain public confidence. I commend the draft code of practice to the Committee.

Motion agreed.

Violence Against Women and Girls: Stalking

Lord Sharpe of Epsom Excerpts

Thursday 23rd February 2023 Lords Chamber

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

My Lords, the announcements made on Monday do cover stalking. We have added violence against women and girls to the strategic policing requirement, meaning that it is set out as a national threat for forces to respond to. Tackling stalking is included in this. Stalking is already one of the offences specified in multi-agency public protection arrangements. This week we announced that the offence of controlling or coercive behaviour will be added alongside it.

[Baroness Brinton (LD)]

I thank the Minister for his reply. Despite the drastic increase in stalking cases in recent years, only 1% result in a court conviction, and this does not deter the most serious stalkers. Claire Waxman, the victims’ commissioner for London, has been stalked for 19 years by an obsessive and terrifying stalker who has been in court six times for breaching a lifetime ban on contacting her. He was given a 16-month sentence in November.

The problems are with non-domestic stalking in particular. I appreciate the point the Minister made about stalking being included, but the tenor of the Statement referred to domestic abuse only. Can he clearly confirm that non-domestic stalking is also included in all the provisions of Monday’s Statement?

[Lord Sharpe of Epsom (Con)]

My Lords, first, I commend the noble Baroness for her extensive work on this over many years. As I said in my original Answer, we do not need to add stalking because it is already there. Section 4A of the Protection from Harassment Act 1997, on stalking involving fear of violence or serious alarm or distress, is already in category 2 of the multi-agency public protection arrangements. This means that those sentenced to at least a year for that crime are already subject to active management.

[Lord Morrow (DUP)]

My Lords, I think it appropriate to bring to the attention of the House another form of violence that was perpetrated in Northern Ireland yesterday evening when an attempt was made to murder an off-duty serving officer in the county town of Tyrone, Omagh. I am sure the House will join me in wishing that police officer a full and speedy recovery; we all trust that he makes just that. I commend the noble Baroness, Lady Brinton, for raising this issue today. Are the Government doing enough to ensure the safety and protection of women, who are very often in isolation in the evenings, going about their daily duties? Surely it is time for a campaign to be stepped up to stop this awful behaviour, which I want to see the Government take a greater drive against. Hopefully, we will live to see the day when it is totally eliminated.

[Lord Sharpe of Epsom (Con)]

I join the noble Lord in wishing the officer in Northern Ireland a speedy and full recovery; it is an awful situation. It is clear that the Government’s activity regarding violence against women and girls—VAWG—is extensive. A number of other initiatives have been taken on stalking: for example, the Ask for ANI scheme, which is being piloted in jobcentres and so on. This is a codeword scheme developed by the Home Office during Covid-19 to provide a discreet way for victims of domestic abuse to signal that they need emergency help. Significant funding has been committed to this issue, as noble Lords will be aware, and the Online Safety Bill will also include various measures. Work is both ongoing and dynamic.

[Baroness Sugg (Con)]

My Lords, my noble friend the Minister referred to putting controlling and coercive behaviour on a par with physical violence, meaning that offenders will be closely monitored. This is a welcome proposal but it will need legislation, and this is a busy time. Can my noble friend give any indication of a timeline for this legislation? Women’s groups and campaigners against violence against women and girls are very keen to know the answer.

[Lord Sharpe of Epsom (Con)]

My noble friend asks a good question. We will be changing the law to ensure that dangerous offenders with a conviction for controlling or coercive behaviour who are sentenced to 12 months or more are automatically eligible to be managed under MAPPA. It will require primary legislation, but I am afraid that I cannot give an exact timeframe for that—I suppose the usual phrase is, when parliamentary time allows.

[Baroness Thornton (Lab)]

My Lords, what are the Government doing about the continuing downward spiral in charging, prosecutions and convictions for domestic abuse in England and Wales? Police referrals to the CPS are down again this year and are lower than they were before Covid shut down the justice system.

[Lord Sharpe of Epsom (Con)]

My Lords, I accept that there is some regional variation in, for example, applications for stalking protection orders. Where those variations exist, the Safeguarding Minister is planning to write to the various chief constables whose forces applied for fewer than might have been expected, in order to encourage them always to consider these. Forces such as the Met and Kent have been making excellent use of the new orders, applications for which have risen by 31% in a year. So, as regards stalking, it is a very good story; it needs still to improve, of course, but it is getting better.

[The Lord Bishop of Gloucester]

My Lords, according to the Office for National Statistics, only 18% of domestic abuse victims report to the police. Can the Minister say whether the Government are taking a whole-system approach to tackling and preventing abuse—through the health system, education and better housing and welfare provision? A whole-system approach is needed.

[Lord Sharpe of Epsom (Con)]

Yes, I can. For example, a couple of new initiatives were announced on Monday, one of which concerns the digital aspects of this. As I am sure many noble Lords are aware, we are strengthening the domestic violence disclosure scheme—sometimes known as Clare’s law—which enables the police to disclose information to an individual about their partner’s or ex-partner’s previous abusive or violent offending. So my answer is yes: work on this is being strengthened and, as I said in answer to an earlier question, is very much ongoing.

[Lord Paddick (LD)]

My Lords, when seven of the eight measures in the Home Secretary’s Statement on tackling violence against women and girls are about domestic violence, what message does that send about the Government’s prioritisation of non-domestic stalking?

[Lord Sharpe of Epsom (Con)]

My Lords, as I have said already, non-domestic stalking is already covered under MAPPA. I would not say that it is not necessary, but it is already there. To a large extent, and to be more specific, it would not have been needed.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the problem with this sort of issue has always been that the police are not very good at accepting the word of women who come forward after repeated incidents of harassment or violence. It is very good that a couple of police forces are doing well, but what about the rest of them? What are the Minister and his department going to do to make sure that all police forces take this seriously?

[Lord Sharpe of Epsom (Con)]

As I alluded to earlier, the Safeguarding Minister is planning to write to all chief constables whose forces applied for fewer orders than might have been expected. The previous Safeguarding Minister also sent similar letters to chief constables, as has been referenced publicly. Clearly, there is no denying that more needs to be done in certain areas. However, as I have said, the Government are also piloting a number of avenues for people to report such offences, including the Ask for ANI scheme I mentioned earlier. Over 5,000 UK pharmacies—both independents and chains—are now enrolled in that scheme. There are a number of avenues through which victims can report this sort of abuse.

[Baroness Berridge (Con)]

My Lords, given the low rates of referral mentioned by the noble Baroness, Lady Thornton, is there not a need for additional independent resource—perhaps from the CPS or other independent barristers—for forces in special measures to make sure they are processing the claims and passing them on to the CPS?

[Lord Sharpe of Epsom (Con)]

My noble friend makes a good point and I will of course reflect her concerns back to the department. However, forces under special measures are obviously subject to significant scrutiny. I cannot say for certain because I have not looked into this, but I would imagine that it forms a key part of the scrutiny under which they operate.

[Lord Bach (Lab)]

My Lords, will the Minister invite the Safeguarding Minister to send the letter she is sending to chief constables to police and crime commissioners as well?

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very good suggestion—yes, I will.

[Baroness Butler-Sloss (CB)]

My Lords, would it be wise to have some publicity about non-domestic stalking? The Minister says that it comes under harassment, but are the police altogether aware of it—and, indeed, the public who suffer?

[Lord Sharpe of Epsom (Con)]

I would hope that the police are already aware of it. As regards the public, the noble and learned Baroness makes a sensible point; it probably ought to be better known.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, as we approach International Women’s Day in a couple of weeks’ time, can the Minister outline what work is being done with the devolved Administrations and regions to counter the stalking of women and young girls, which is prevalent throughout the UK?

[Lord Sharpe of Epsom (Con)]

The noble Baroness makes a good point. Of course, this does not respect particular geographical boundaries. It is a devolved matter and, as noble Lords know, operational matters are left to the various police forces, but I will certainly make sure that my colleagues in the devolved departments are aware of the noble Baroness’s concerns.

Police and Crime Panels

Lord Sharpe of Epsom Excerpts

Thursday 23rd February 2023 Grand Committee

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

My Lords, I thank all noble Lords for their contributions, and I particularly congratulate the noble Lord, Lord Bach, on securing this important debate. I know that this topic has long been of interest to him, and a wide range of views have been expressed on a variety of issues related to the roles and responsibilities of police and crime panels this afternoon.

I am grateful to the noble Baroness, Lady Harris, for reminding us that this was a coalition policy and that panels were a Lib Dem idea because it gives me a rare opportunity to congratulate the Lib Dems on a good idea.

I echo the comments of the noble Lord, Lord Bach, that it is vital that policing remains transparent and accountable to the public. Since their introduction in 2012, police and crime commissioners have brought real local accountability to how chief constables and their forces perform, ensuring that the public have a stronger voice in policing. In stark contrast to the invisible and unaccountable police authorities that preceded them, PCCs operate in the full gaze of the media and must justify their record via the ballot box, as the noble Lord knows.

I will digress briefly to look into the old police authority model because, to quote some of the remarks of the noble Baroness, Lady Wilcox, I believe that they were short of democratic accountability too. Police authorities consisted of 17 members, nine of whom were elected members drawn from the local authority or authorities for the force area, and reflected the political make-up of those authorities. The remaining eight members were called independent members and were appointed from the local community for fixed terms of four years by the police authority itself. They were drawn from a long list of applications submitted by the elected members and magistrates to the Home Office and that committee then appointed the independent members from a shortlist returned by the Home Office. At least three of the members were magistrates and there was no difference in power and responsibility between the different types of members. The chair was appointed by the authorities themselves. I am afraid that that is also very short of democratic engagement, it certainly lacks accountability and there is not much transparency.

Over their term of office, the decisions and actions of a PCC are subject to a holistic system of checks and balances. The most visible mechanism for scrutiny is the police area’s police and crime panel. PCCs are also subject to investigation by the Independent Office of Police Conduct in cases of serious misconduct, the oversight of their monitoring officer in preventing unlawful action or expenditure, and statutory requirements on transparency imposed by the specified information order. Panels are a vital part of that police governance model. They ensure that PCCs are scrutinised effectively and remain accountable for their decisions to those who elected them.



I will begin by explaining, for clarity, the existing structure, purpose and powers of police and crime panels, which for ease I will refer to simply as “panels”.

The noble Lord, Lord Bach, and the noble Baroness, Lady Wilcox, asked about the chair and political neutrality. They can be independent; they are not always, but they are expected to act with neutrality. Unfortunately, I do not have the statistics about political affiliations requested by the noble Baroness, so will write.

In each force area outside of London, panels have a wide-ranging remit to scrutinise the actions and decisions of their PCC, providing support and challenge, and acting, again to quote the noble Baroness, as a critical friend.

Panels have specific powers of veto over chief constable appointments and precept setting. They also have oversight of the PCC’s key documents, decisions and reports, requiring the PCC to provide information and answer any questions which the panel considers necessary. Additionally, panels have specific powers to review the PCC’s proposed appointment of senior staff—a subject to which I will return. They also play a direct role in handling complaints made about the conduct of a PCC, including responsibility for resolving complaints of a non-criminal nature.

A key function of panels is also to provide transparency, enabling the public to effectively hold PCCs to account. Panels must make information available to the public by publishing all reports and recommendations made to the relevant PCC. In most cases, panels are required to conduct their meetings where members of the public can attend or watch via webcast. Each panel is also required to maintain rules of procedure, which will usually make provisions about how questions or statements can be submitted by members of the public. I note with interest the comments of the noble Lord, Lord Bach, on the panel hearings that he faced, which I think vindicate their effectiveness.

On the question asked by the noble Lord, Lord Bach, noble Lords will, I hope, be aware of the Government’s two-part review to strengthen the accountability and expand the role of PCCs, and to help PCCs to deliver effective police forces that can cut crime and protect their communities. Both parts of the review looked specifically at sharpening the transparency and accountability of PCCs, as well as ensuring that they have the necessary tools and levers to be strong local leaders in the fight against crime and anti-social behaviour. As part of this, the review examined whether police and crime panels have the right skills, tools, and powers to scrutinise PCCs and provide constructive support and challenge.

The review concluded that panels have the appropriate powers at their disposal, agreed by Parliament, to scrutinise PCCs effectively and shine a light on progress against local police and crime plans. However, the consistency and quality of scrutiny can vary, and the review made several recommendations to improve the scrutiny of PCCs, primarily by supporting panels to perform their role more effectively and improving panels’ understanding of their powers and responsibilities.

In line with those recommendations, and in consultation with both the Local Government Association and the Welsh Local Government Association, we have already taken steps to improve and strengthen the scrutiny of PCCs by: issuing new guidance and best practice guides in May 2022 to sharpen panels’ understanding of their roles and responsibilities; hosting a series of webinars with panel chairs, members and supporting officers to deliver foundational learning on scrutiny best practice, which we have published on the Home Office’s YouTube platform; and issuing additional guidance to aid the recruitment and retention of independent panel members, who provide valuable additional skills, diversity and expertise for PCC scrutiny. That was issued in January.

Furthermore, in line with one of the recommendations brought forward through part 2 of the review, we have begun a fundamental assessment of the panel support model to further improve the professionalism, quality and consistency of support provided to panels by local authorities. This work will seek to address what we heard during the review’s call for evidence, which pointed towards variation in the level of full-time, dedicated resource given to panels by host local authorities.

The delivery of all these measures will help to ensure that PCCs put the law-abiding majority who voted for them at the centre of their decision-making. Noble Lords will see that we are already taking a number of steps to improve the scrutiny of panels. For that reason, the Government currently have no plans to change the structure, purpose and powers of panels.

The noble Lord, Lord Bach, asked about the powers of police and crime panels to scrutinise senior appointments made by the PCC. Other noble Lords alluded to that. He will know that PCCs are required by legislation to notify the panel when proposing appointments to senior positions in their office, including those of chief executive, chief finance officer, and deputy PCC. The legislation provides that the same appointment procedures and scrutiny processes also apply to the roles of acting chief executive or acting chief finance officer.

To execute scrutiny duties, the panel must then hold a confirmation hearing and produce a report and recommendation on whether it supports the proposed senior appointment. The panel must do so within three weeks of receiving notification from the PCC of the proposed appointment. The confirmation hearing must be held in public and the proposed candidate must be requested to attend.

In the case of Leicestershire, to which the noble Lord, Lord Bach, referred, we are advised from discussions between officials and supporting officers from the Leicestershire panel that the PCC intends to notify the panel that a new interim chief executive of the OPCC has been installed, and that this interim appointment will undergo the appropriate scrutiny process and confirmation hearing at the next panel meeting, which is due to take place on 6 March. That is therefore in accordance with the legislation, and I hope that satisfies the noble Lord. I say on the record that the Government expect, in the strongest possible terms, that PCCs appointing to senior positions in their offices follow the process clearly set out in legislation.

My noble friend Lord Lexden referenced Mike Veale and that hearing. The law is not being flouted. Arrangements concerning the establishment of a misconduct hearing are a matter for PCCs. My noble friend is quite right that I asked for speed in answer to a previous question, but I meant it in very much a generic sense. It is in everybody’s interest that these misconduct hearings are concluded as quickly as possible. I should have said that the Cleveland PCC has no power over the legally qualified chair, who must commence a hearing within 100 days of an officer being provided a notice referring them to proceedings, but may extend this period where they consider that it is in the interests of justice to do so. Decisions made within a hearing are done so independently of PCCs as well as government. There is no indifference on the part of the Home Office.

[Lord Lexden (Con)]

Could my noble friend comment as to whether a chair has actually been appointed in Cleveland? If an appointment has been made then, as the Written Answer sent to me yesterday clearly states, the name must be made public. The only way in which the Cleveland police and crime commissioner can be within the law is if a chair has not actually been appointed. If no chair has been appointed then the situation is even worse.

[Lord Sharpe of Epsom (Con)]

My Lords, I shall come on to the answer to that question in a second. As I say, the Government take the accountability of the police very seriously and will continue to do so. There is no indifference on the Home Office’s part in this situation.

In recent months, I have been asked on a number of occasions about the lack of apparent progress in this particular misconduct hearing. I have variously been accused, largely by members of my own party, of incompetence and impotence, among other things. However, the legally qualified chair has the right to extend the 100-day period if it is in the interests of justice to do so. If I were to comment further on this specific case and its delay—I could but I will not—that would, I believe, be genuinely incompetent because it could well prove prejudicial to the interests of justice. I am sure that no noble Lords want to see justice prejudiced, so I am afraid that my answer to any future questions or continuing questions in this debate will remain the same.

I happen to have a copy of the Written Answer that I sent to my noble friend Lord Lexden yesterday. Let me read it out for the record:

“Arrangements concerning the establishment of misconduct hearings are a matter for Police and Crime Commissioners (PCC), and the management of the hearing itself is the responsibility of the independent Legally Qualified Chair (LQC) in charge of it. Decisions made concerning a hearing are done so independently of PCCs as well as Government and the Home Secretary has no powers to make directions in relation to those hearings. Given the independence of PCCs and LQCs, it would be inappropriate for the Government to seek to influence those decisions.”


Anonymity is not a legal requirement. However, as I have just explained, the Home Secretary has no power to intervene in these circumstances. The legally qualified chair in Cleveland has taken decisions for very good reasons; I will leave it there as there is nothing more I can say.

I will move on to the PCC review recommendation to undertake an assessment of the panel’s support model, which obviously formed the basis of a number of good points that were made, in particular by the noble Baronesses, Lady Wilcox and Lady Harris, and the noble Lord, Lord Bach. Following a commitment arising from part 2 of the PCC review, we have begun a fundamental assessment of the panel support model to further improve the professionalism, quality and consistency of support provided to panels. I must stress that this work is tightly focused on the role of democratic support officers, who sit within a host local authority and provide policy, professional and administrative support to ensure that panels effectively discharge their statutory functions to scrutinise PCCs.

To progress this work, we are undertaking some analysis of a regional model for panel support, along with consideration of improvements to the current model and exploring other potential ways to achieve our aims. A range of options will be designed and assessed before further advice is sought from Ministers to agree any next steps.

The recommendations on PCC complaints were referred to by the noble Lord, Lord Bach, and my noble friend Lord Lexden. I must say that I find it disappointing that my noble friend has not investigated the quality of other PCCs more generally; had he done so, he would have found that they are consistently excellent across the country.

Although our announcement of the PCC review recommendations did not make specific recommendations on the PCC complaints system, we are still committed to developing reforms in this area. This includes ensuring clarity on what constitutes misconduct or a breach of expected standards by PCCs; deciding which body is best placed to handle certain types of complaints; ensuring that the system does not give rise to vexatious complaints; and ensuring the effective handling of criminal allegations against PCCs.

We need a system which is open, transparent and fair for all parties when handling complaints. While we develop the reforms in this area, we have taken interim steps to assist, which includes publishing guidance to strengthen the quality and consistency of scrutiny by panels and more clearly explaining their roles and responsibilities. In handling complaints about PCCs, panels must refer serious complaints and conduct matters to the IOPC. Additionally, panels are responsible for resolving non-serious—that is, non-criminal—complaints made about a PCC’s conduct when in office. Ultimate responsibility for handling any non-criminal complaints they have received remains with the panel, and they retain the ability to seek an informal resolution of a non-criminal complaint if they consider it necessary.

We consider the PCC model more democratic than the predecessor model of police authorities, as I hope I have explained. PCCs are directly elected by the communities they serve and are held to account at the ballot box; this democratic power did not exist before PCCs were introduced in 2012. The Government are committed to strengthening and expanding their role. We have taken steps to do so through the implementation of recommendations from the PCC review, and we are continuing to work closely with sector partners to implement all the recommendations.

I thank noble Lords for raising this debate. I am pleased that I have had the opportunity to update the House on the progress that we are making to strengthen and improve scrutiny arrangements. The Government believe that panels have sufficient powers and the right structure to carry out their vital role of scrutinising PCCs, and the Government are committed to delivering the PCC review recommendations in full to sharpen quality, consistency and professionalisation of panels. PCCs play a vital role in holding the chief constable to account and keeping our communities safe. The public deserve visible and accountable local policing leaders who are properly scrutinised and held accountable on the issues that matter most to them.

As a final postscript, the consultation on LQCs and the dismissal process remains open. If noble Lords have strong opinions on this, I suggest that they submit them to the consultation.