National Security Bill

Lord West of Spithead Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

As the noble Lord, Lord Marks, mentioned, perhaps the “Belgrano” case is one example of a perverse verdict. It is at least arguable that the defendant in that case did not harm national security by disclosing that the Argentinian warship that was sunk was heading in one direction, when it had been announced that she was heading in another, more threatening one. He might have been able to satisfy the factors set out—

[Lord West of Spithead (Lab)]

Perhaps I might intervene. Ships alter course and go in all sorts of directions. There is a general trend, of course, and the general trend of the “Belgrano” and her group was towards a sudden pincer that would have attacked our force. That was why she was sunk—quite correctly. It was the right decision. In the context of this amendment, I would not want that to be confused.

[Lord Garnier (Con)]

I would not describe the noble Lord as a young man in a hurry although, had he waited just a second or two, he would have discovered that he and I might be in closer agreement than he might otherwise have imagined. But there we are. Let us ignore for the moment the direction in which the ship was going, understand that it was sunk and understand that Ponting disclosed that it was going in a particular direction when the Government had announced it was going in another. That is the end of that little anecdote. I am grateful to the noble Lord for his intervention. In my view, the short point is that it was an enemy ship that was generally threatening our ships. We were at war with Argentina. Argentinian warships were at risk of being sunk if they came within range of British Armed Forces. I do not have any particular sympathy for the Argentinian ship—albeit of course that it led to the most appalling loss of life for many Argentinian sailors.

However, it is not satisfactory for juries faced with a case where they think that a conviction on the evidence before them is unjust to be forced to bring in a perverse verdict in breach of the judge’s clear direction on the law and how it applied to the facts of the case. I suggest that this amendment is conservative with a small “c” and not a traitor’s “get out of jail free” card. The burden of proof is on the defendant to demonstrate that the disclosure was in the public interest and that the factors set out in proposed new subsection (3) are met. It would not allow for someone to disclose national security information because they thought that their view of the world was more attractive than that of the Government or the security services, or out of greed; nor would it allow for a Snowden or a Wikileaks scenario where vast swathes of information were dumped into the public domain.

If, for example, there was a better way of dealing with the sensitive information—noble Lords should look at proposed new subsection (3)(f)—the defendant would be hard pushed to persuade the jury that public disclosure was in the public interest. In my view, the proposed amendment accepts reality and prevents juries bringing in perverse verdicts in order to achieve informal or dishonest justice. A law that is not respected or is avoided by perversity, perhaps following some intellectually dishonest advocacy, is not worth having. In an era of electronic media, when information gets out pretty much immediately across the world in vast quantities, it may be better to inhibit desperados and attention seekers by getting them to think about what they will need to prove to found their public interest defence.

It seems to me that we can either carry on pretending that perverse verdicts do not happen—and swiftly change the subject when they do—or face up to reality and legislate sensibly for a really very unradical public interest defence that will neither bring down the state nor damage respect for the rule of law.

[Lord West of Spithead (Lab)]

My Lords, although I sympathise with Amendment 79, which seeks to protect those who act genuinely in the public interest, I do not support it, for a number of reasons.

First, although I accept that, in its comprehensive 2020 review relating to the protection of official data, the Law Commission recommended that a public interest defence be introduced, that was in relation only to the Official Secrets Act 1989. Its recommendation did not suggest that such a defence should be incorporated into the rest of the Official Secrets Act regime, which is what in effect this Bill seeks to replace.

Secondly, in any event, the risks of introducing such a defence need to be carefully considered and balanced against the benefits of potential alternative approaches. This includes the creation of an independent commissioner to receive and investigate complaints of serious wrongdoing, which the Law Commission also recommended.

Thirdly, any introduction of a public interest defence needs to form part of a wholesale reform of the Official Secrets Act 1989, which this Bill does not seek to do. As I said at Second Reading, the ISC was disappointed to see that the Government were not reforming that Act. I will not repeat what I said then, other than to say that it is a very significant missed opportunity. That is particularly so because the Government have accepted the need to change the OSA for years, and this Bill represented a clear legislative route to do it.

Lastly, this amendment is very broadly drafted. It would introduce a public interest defence into a range of offences that do not require one, such as the offence of assisting a foreign intelligence service. For those reasons, I cannot support it.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I recognise the Government’s argument that these spying offences need to be broad enough to capture the wide range of illicit activities that foreign powers may undertake to harm the UK. However, if that is so, equally broad defences are needed to protect innocent people who may become ensnared in the broad definition of the offences. Amendment 79 in the name of the noble Lord, Lord Marks, is absolutely vital; it must be in the Bill.

I want to respond to the Minister’s comments in our debate on the previous group. I heard his reassurances about journalistic freedom, which I am sure were very sincere, but promises can be broken. Ministers move on. Governments move on. Commitments can be forgotten. I just do not think that, if it is not in the Bill, it can be held to be the law.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

My Lords, one of the reasons for supporting the amendment, to which I have added my name, as the noble Lord, Lord Carlile, said, is the Government’s recent change which allows long-term expats to continue to be on the UK electoral register and therefore to be permitted donors to UK political parties. This means that someone living —for the sake of this argument—for 40 years in, say, Russia, to take the example just given, can be on the electoral roll here. A British subject, living for 40 years in Russia, can now be on the electoral roll here, with no checks or questions asked, and that person can then donate money to a British political party—no names, no pack drill, and importantly, of course, no checks whatever on the source of the money they are able to donate to a British political party.

PPERA—the Political Parties, Elections and Referendums Act, as most of us know—requires parties to check only that the donors are “permissible”; no checks are needed on the source of their funds. They are not even required to carry out enhanced due diligence on donors operating in high-risk countries which are listed in the money laundering and terrorist financing regulations 2022. There are no obligations on political parties to do the due diligence that we would expect of anyone else handling money from any of the countries on that list.

Incidentally, that is very, very different from those of us—well, all of us in this House—who are PEPs under the AML rules. Indeed, at this moment in the Moses Room the financial services Bill is being discussed, which is trying to reduce the extraordinary number of hoops that we and our children all have to go through in our banking activities because of our presence here. However, Russian-based UK citizens, who long ago gave up paying taxes of any sort here, can donate money, without any question as to its provenance, to a UK political party, surely influencing our democracy way beyond some of the other minor activities that this Bill seeks to make transparent—an issue we will return to later.

Amendment 51, tabled by the noble Lord, Lord Carlile, would capture any possibility that the money could come from a foreign power. As the amendment states, it would include donations made through an intermediary. We on this side would certainly like to know the source of donations made from outside the UK to a political party, whether in government or opposition, or to a party with no elected Members.

The noble Lord, Lord Sharpe, has been very helpful on this Bill. To our surprise, in Committee, he claimed that our existing electoral law has

“a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections”—[Official Report, 21/12/22; col. 1166.]

can donate. I question that in respect of someone who has been out of the country for that long, does not use any of our services and does not pay our taxes. Even more, do we check the legitimate interests of those long gone who can put in money from another source?

I trust that the Government have now looked again at what was a rather complacent reply and that they share our interest in revealing full details, including instigating proper checks. I hope that they will therefore accept Amendment 51. As the Minister knows, it has the full support of the Electoral Commission. I hope that he would welcome a duty on political parties to check the true source of donations and assess the risk of accepting money from overseas, particularly from those on the list of the AML regulations. Rather along the lines of “know your customer” which the banks have to do, there should also be a “know your donor”. This should be a culture in all our political parties. It would mean assessing the risk that donors might pose, especially those from overseas countries. There would be an enhanced due diligence on new donors and proper recording of such checks.

I received a letter from the Minister today which I think has not yet been shared with the House. It says that it is in the national interest to have greater openness about the influence on British politics by foreign powers. We agree. Amendment 51 would ensure that all overseas donations were openly made and disclosed.

[Lord West of Spithead (Lab)]

My Lords, I support Amendment 51, which would help increase the transparency and accountability of our political system. The ISC’s Russia report of 2020 recognised that the UK had clearly welcomed Russian money, including in the political sphere.

The Government have previously assured the House that the protections within the electoral financing laws are “sufficient”. However, as other noble Lords suggested in Committee, there are clear differences between the requirement on companies to undertake due diligence when receiving foreign money and that on political parties, which have no such duties. This would help close the gap.

I note that the amendment requires a political party to publish a policy statement within three months of the passing of the Bill. The Secretary of State also has three months to produce the accompanying guidance. It may be advisable for the Secretary of State to publish the guidance before political parties are required to produce their policy statements. I simply raise that as a practical point. It does not affect my support for the amendment.

As regards the government amendments, it is not clear why they seek to exclude parliamentary proceedings from the definition of political processes, thereby moving them outwith the scope of any new foreign interference offence. I appreciate that the Government have said that it is to clarify that the Bill does not intend to interfere with parliamentary privilege, but I do not see that the answer is to remove the concept entirely.

To commit the foreign interference offence, one needs to conduct “prohibited conduct” which has an “interference effect”. “Prohibited conduct” includes a variety of unacceptable behaviours—from a criminal offence to threatening to damage someone’s reputation or causing financial loss. Surely, it is critical to prevent any foreign interference in parliamentary proceedings which involves a person conducting such unacceptable behaviour. Perhaps the Minister could explain how including parliamentary proceedings in the foreign interference offence would undermine parliamentary privilege, given the need for the prohibited conduct of the offence to apply. Even if the amendment is warranted, could the Minister explain why the Government have not replaced it with wording similar to that in Clause 70, as amended. This refers to interference with

“a Member of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament”

rather than “parliamentary proceedings”, which would ensure that no gap was created.

[Lord Wallace of Saltaire (LD)]

My Lords, the all-Peers letter which the Minister sent to us on 28 February states clearly and strongly that what we need is in this Bill is

“transparency on which foreign powers are influencing our politics”,

which it states

“is vital to defending our democracy”.

This reasonable amendment fills one of the loopholes left in the Bill. We are all concerned about the integrity of our elections. We are conscious that foreign donations are part of what can undermine that integrity.

The Minister may have had drawn to his attention a letter in yesterday’s Financial Times which points out that the new proposals for a football regulator include among its duties the need to ensure stronger due diligence and checks on the sources of wealth of those who wish to buy or own football clubs. It is anomalous, to say the least, that we should have stronger checks on people who wish to buy British football clubs than on people who wish to give sometimes very large sums of money to British political parties. I remind the Minister that the question of Arron Banks’s very large donation to the Vote Leave campaign is still being litigated in the British courts. We still have no assurance as to the origins of that donation, since he has refused to give one.

I support what the noble Baroness, Lady Hayter, has said, by reminding the Minister that there are now 100,000 British citizens living in the United Arab Emirates—some of whom already donate to British political parties. It would be quite easy for some of those to become intermediaries for the sovereign powers concerned. Other wealthy British expatriates live in Thailand, Singapore or Hong Kong. Their business depends heavily on the Chinese economy and state.

It is entirely desirable, reasonable and appropriate to ensure that British political parties play their part in mitigating the risks of foreign interference in British elections by being required to show that they are conducting careful risk management in accepting donations from overseas. There have been a number of instances in recent years of which we are all aware. Some of them were touched on in the ISC report on Russia. It is clear that such management has not been in place. It ought to be. I hope that the Government will accept this amendment as a means of filling this loophole.

--- Later in debate ---

I return to the breadth of the Government’s proposed new clause. Will the Minister explain how it interacts with international humanitarian law and the law on war crimes? Are we going to have cases taken in international courts because the clauses seem to remove a domestic remedy? I do not feel that the wider military aspect of the clause has been adequately examined and, in proposing this amendment, I seek a fuller explanation. I beg to move.

[Lord West of Spithead (Lab)]

My Lords, I speak in relation to Clause 30 and the different amendments being proposed, including the government amendment that seeks to insert a new clause to replace Clause 30 and the amendments that I have tabled on behalf of the Intelligence and Security Committee of Parliament, which seek to amend the government amendment.

Our efforts have been on the basis that everybody in both Houses is working to ensure that our men and women in the intelligence agencies, often working in extreme danger to tight timelines, are provided with appropriate protections. This does not mean an exemption from the safeguards in place regarding behaviour. I should say at the outset that, as noble Lords will understand, I will not comment on behalf of the ISC in relation to the applicability of the clause to the Armed Forces, since that falls outside the ISC’s remit. The ISC has focused on scrutiny of the clauses that relate to the intelligence community.

To our mind, the original version of Clause 30 provided a rare exemption from liability for the intelligence community when working abroad and is completely unacceptable. Not surprisingly, it received fierce criticism from across both Houses. Concerns included that there is already a reasonableness defence under Section 50 of the Serious Crime Act 2007 and that the agencies can already seek immunity from liability for activity undertaken abroad under Section 7 of the Intelligence Services Act 1994. The ISC was concerned about the lack of a proportionality requirement, the absence of an oversight mechanism, the breadth of the immunity provided and the potential damage to the reputation of the intelligence community.

In the Commons, the Bill Committee recognised that there might be classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government therefore committed to provide the ISC with that evidence. The ISC considered that classified evidence, and I outlined the committee’s conclusion at Second Reading. The ISC found that Clause 30 potentially identified a legitimate problem since, despite the existing legislative protection, there might still be a risk of criminal liability for junior members of the intelligence community, even when they acted appropriately, and that this could potentially have an operational impact.

While the ISC therefore sympathised with the aim of the clause, it was firmly of the view that Clause 30, as written, was not appropriate. While the existing mechanism to avoid liability may not be entirely comprehensive, there was simply no justification for incorporating a broad automatic exemption with such limited accountability. At Second Reading, I noted that the ISC had been given an assurance that the Government were developing an alternative approach to meet its concerns.

Before I turn to the ISC’s view on the detail of the amendment that the Government have now tabled, I want to touch on the Home Office’s handling of this matter. Following the constructive session with the intelligence community on Clause 30 ahead of Second Reading in the Lords, where the committee provided a series of recommendations to improve the clause, the ISC’s chair wrote to the Security Minister requesting that the Government provide the ISC with a draft of the amendment in advance of it being formally tabled, with sufficient time for it to scrutinise it and make any further recommendations. This was with the intention of ensuring that the amendment was appropriate to the problem and would therefore not attract the same fierce criticism from this House as the original Clause 30. Our intention was to help. Indeed, we are working, as I have said, on the basis that everyone in both Houses is working to ensure that our men and women, who often work in extreme danger to tight deadlines, are provided with the appropriate protections while incorporating the required safeguards and maintaining a sufficient level of accountability and oversight.

However, the ISC received no response from the Security Minister or any other Home Office official for almost five weeks. The draft amendment was finally received on 21 February, but was then immediately tabled on 22 February, despite the committee being scheduled to discuss it with the intelligence community on 23 February. This left the ISC with no time to consider the amendment. The Government clearly tabled it as a fait accompli, with little regard for appropriate parliamentary engagement. This is in spite of the Government’s commitment in Committee to continuing to work with the experts in this House, and those in other places, to reach a consensus on Clause 30.

At Second Reading, I referred to the catalogue of problems relating more broadly to the handling of this Bill which have seriously undermined effective parliamentary scrutiny. I emphasised then that the Bill, which is about our national security, is too important to be handled in such a chaotic manner, yet the Government seem to continue to ignore these concerns. The Home Office’s failure to engage is disgraceful—and I say this with some sadness, having been a Home Office Minister for some three years.

The ISC is the only organisation which can scrutinise the classified evidence underpinning the rationale for Clause 30 on behalf of Parliament and the public. The Government need to stop treating the ISC and wider Parliament like the enemy. Effective parliamentary scrutiny must be taken seriously by the Government. We should be working together, constructively, to ensure that the Bill is as effective as possible and in the best interests of the country; having talked with the Minister, I think that is now beginning to happen. However, I take this opportunity to put on record that the Home Office’s complete failure to abide by its commitments made in this House to engage with the ISC is in contrast to the efforts of the intelligence community, with whom the ISC has continued to have constructive discussions on Clause 30 and the rest of the Bill.

I turn to the detail of the clause. In the ISC’s view, this amendment is certainly an improvement when compared with previous versions. It has changed the automatic exemption to a more limited defence using similar wording to the defence in Section 13 of the Bribery Act. Rather than an automatic carve-out from liability, this will require the facts of any case to be put forward and considered properly in a court. The amendment also introduces a level of accountability. The head of each intelligence service is required to ensure that their service has in place arrangements designed to ensure that the relevant activities are necessary for the proper exercise of their functions. These arrangements must also be to the Secretary of State’s satisfaction, which introduces a level of ministerial accountability.

Nevertheless, we are not quite there yet. The ISC still has concerns and questions that need to be answered. First, there is a glaring omission of any requirement of proportionality in the new defence. As the amendment is currently drafted, for the agencies to use this defence they need to demonstrate only that their activity was necessary; it is not explicit that their activity needs to be proportionate. There is therefore no need for the nature and likely consequences of any activity to be reasonable. In short, it appears that the intelligence community could avoid liability even where an act was entirely disproportionate or unreasonable.

I note that this defence is based on the intelligence community’s defence to bribery offences in Section 13 of the Bribery Act 2010. However, the bribery offence is rather less serious than those being considered here. This clause provides a defence to assisting or encouraging any offence overseas, however serious. There is therefore a much stronger case for a proportionality requirement to be explicitly set out in this defence.

I have therefore tabled two amendments on behalf of the ISC to subsections (2) and (3) of the proposed new clause inserted by the government amendment explicitly to incorporate a proportionality requirement. The Government may seek to argue that this introduces greater uncertainty or that the criminal law does not generally put proportionality into legislation. However, these are not sufficient reasons for completely omitting a concept of reasonableness from a defence to assisting serious offences overseas. There must be an appropriate level of accountability.

The Government may also argue that this addition is unnecessary as proportionality is already implied in the defence, specifically within the words

“proper exercise of any function”

of an intelligence service. If that is the case, the Minister needs to state this explicitly from the Dispatch Box to ensure that the courts take this into consideration.

While the ISC has sought to amend only the government amendment to address the proportionality question, as that is the most serious, it also has a number of other questions that should be answered. In particular, it is not clear whether this new defence is connected to the internal arrangements that must be established by the head of each intelligence service to ensure that activity undertaken by their service is necessary. Specifically, can an activity which is necessary but does not comply with these internal oversight arrangements be considered as falling within the proper exercise of an intelligence service’s function?

Given that the purpose of requiring these arrangements is to ensure that there is a layer of senior official accountability, it is vital that all activity undertaken by the intelligence community complies with these internal safeguards. Where an act does not comply with these arrangements, it should fall outside the definition of “proper exercise” of the intelligence community’s functions, automatically preventing the intelligence community using this defence. If this is the case, the Minister should say so explicitly from the Dispatch Box.

The third point the Minister might wish to assure the House on is precisely what those arrangements are. They are not defined in the defence and are therefore too vague. For this uncertain wording to be acceptable, the Minister must set out what the arrangements include and what principles are incorporated within them. Do they, for example, incorporate the principles of necessity and proportionality throughout? Do they simply include general internal risk management procedures within the agencies, or do they also incorporate specific policies such as the Principles, which relate to the detention of and the passing of intelligence relating to detainees, for example? Again, the Minister needs to confirm this explicitly from the Dispatch Box.

A further important question is the extent to which this defence has an impact on existing legislative provisions for oversight. In Committee in the Lords, in response to questions from the noble Lord, Lord Carlile, the Minister said that Clause 30 as originally drafted would mean that, in some cases, authorisation by the Secretary of State will no longer be a requirement. I want to pause on the significance of those words. Despite previous assurances that Clause 30 would not have any impact on ministerial accountability or oversight of the intelligence community, the Government admitted in this House that the ministerial authorisation for encouraging or assisting offences overseas, for example Section 7 warrants under the Intelligence Services Act 1994, would sometimes no longer be required. That is astonishing and I am sure that many in this House find it extremely concerning. It shows that the Government were willing fundamentally to undermine existing ministerial accountability and oversight, which is already set out in statute and provides a vital check on the significant powers wielded by our intelligence community.

We do not expect our intelligence community to be acting inappropriately. On the contrary, it shows how justified Parliament’s concerns were in relation to this clause and how important it is to resolve them. It also demonstrates the need for clarity as to exactly how the new defence will have an impact on existing accountability legislative measures before we approve it. I would therefore welcome the Minister’s confirmation that, unlike the previous exemption, this new defence will not lead to fewer ministerial authorisations sought by the intelligence community or less daily oversight from Ministers and/or judicial commissioners of intelligence community activity.

These four issues are those which the ISC is most concerned about. We have also noted that, as drafted, the burden of proof falls on the prosecution rather than the defence, which makes it more favourable to the intelligence community than the defence in Section 13 of the Bribery Act. However, there are many fine legal minds here who I am sure will know a lot about this, and I bow to their experience on that subject.

In conclusion, the government amendments to Clause 30 recognise that the defence is significantly better than the exemption that was previously provided, so we are more pleased with it. It will help to protect the junior members of our intelligence community, who work tirelessly to protect our country. We cannot let the Government’s poor handling of the Bill affect our consideration of the substantive issues. As the clause stands, the ISC has three concerns on which it requires assurances from the Minister today. We have already notified the Home Office as to what they are, so I trust that the noble Lord has come equipped to speak on those three points.

To recap, they are, first, that the proper exercise of a function of an intelligence service already incorporates proportionality; an act could not be within the proper exercise if it is not proportionate. Secondly, what is the meaning of the arrangements that the heads of each intelligence service are expected to establish? What do they consist of and what principles do they incorporate? Third, we require assurance that proper exercise is connected to the internal oversight arrangements that each intelligence service head must ensure exists, so that an act could not be considered within the proper exercise of a function if it does not comply with the oversight arrangements.

--- Later in debate ---

Tabled by

[Lord West of Spithead]

67: In inserted section 50A(2), after “necessary” insert “and proportionate”
Member’s explanatory statement
This amendment seeks to incorporate a proportionality requirement into the overarching defence.

[Lord West of Spithead (Lab)]

My Lords, I think our concerns have been assuaged by what the Minister said at the Dispatch Box and I think we should be pleased that we have done something that is going to be very useful for our intelligence services in the future. This is a very difficult, complex area. I have been involved in intelligence not as long as the noble Baroness, Lady Manningham-Buller, but probably for about 40 years and it is a very difficult area. It is always dancing on pinheads, I am afraid, but I think we have achieved something here, so I am delighted. I shall not move my amendment.

Amendment 67 (to Amendment 66) not moved.

National Security Bill

Lord West of Spithead Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, this legislation has been a long time coming. The ISC first recommended reform of the outdated Official Secrets Act almost 20 years ago, in 2004. In the intervening period, as has been said by a number of speakers, the need for reform has become more pressing. The world has changed significantly. Threats to the UK’s national security, particularly from hostile state actors—I must get that right —have become more complex, varied and destabilising, making it more important than ever for our intelligence community to have the tools it needs to defend us.

In 2020, the ISC’s Russia report explicitly and simply stated that

“the Official Secrets Act regime is not fit for purpose”.

We recommended that new legislation be urgently introduced as,

“the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.”

The ISC therefore strongly welcomes the long-awaited introduction of the National Security Bill.

Nevertheless, the committee is disappointed to see that the Government are only partially reforming the Official Secrets Act regime. The 1911 and 1939 Acts are being repealed but, crucially, not the 1989 Act, which deals with the unauthorised disclosure of sensitive information. This is a significant missed opportunity. The Government have accepted the need for change for years. In their 2021 consultation paper on the National Security Bill, they said it would,

“include, at a minimum … Reform of the Official Secrets Act 1989”.

Despite that recognition, this Bill still does not reform the 1989 Act.

If this Bill is to provide a new framework to tackle state threats, as it purports to do, it is vital that that framework is comprehensive. It must provide better protection for sensitive information, such that offenders can be prosecuted effectively. This is too serious an issue to have been put in the too-difficult pile, as it appears to have been. I hope the Minister agrees that sensitive information must be properly protected and will therefore commit to reforming the Official Secrets Act 1989 as part of this Bill or, at the very least, to introducing additional legislation in this parliamentary Session.

Before I address the detail of the Bill, I want to emphasise the words of my ISC colleagues in the other place. They made it clear that they felt the Government’s handling of this Bill had been disgraceful and had significantly undermined Parliament’s ability to scrutinise the proposed legislation. There has been a catalogue of problems, including multiple Security Ministers responsible for taking the Bill through the other place; the Government’s introduction of the most significant aspects of the Bill by amendment at a very late stage, reducing the time available for scrutiny; and the limited time made available for debate, preventing any serious consideration of the proposed changes to the Bill in the other place. This Bill is about our national security; it is too important to be handled in such a haphazard manner. I am sure that I speak on behalf of all noble Lords when I say that we expect the need for effective parliamentary scrutiny to be taken seriously by the Government.

I turn to the detail of the Bill. Many of the changes proposed were recommended by the ISC and therefore we broadly welcome them. Clause 1 incorporates updated language to reflect the modern espionage threat. It replaces the outdated existing legislation with provisions that are tailored to the radical technological changes that have taken place since the Official Secrets Act early in the last century. Clause 12 is also sensible, creating a new sabotage offence. This is an important change, particularly given the risks of foreign involvement in critical national infrastructure, which the ISC first publicised in its report of the same name in 2013. Clauses 3 and 15, which create new offences for assisting or obtaining material benefits from a foreign intelligence service, are valuable additions. Together with Clause 16 —the preparatory conduct offence—these will provide law enforcement with additional tools to disrupt foreign agent networks at a much earlier stage, making the UK a more difficult environment for foreign intelligence services to operate in.

Turning to the long-awaited foreign influence registration scheme, one of the cornerstones of the new regime, the ISC firmly supports such a scheme to increase the transparency of foreign influence activity in the UK. It was a key recommendation of the ISC’s Russia report in 2020, which assessed that such a scheme would be helpful in countering overt Russian influence. It is perhaps a case of better late than never. The United States first introduced such a scheme in the 1930s, over 80 years ago. By contrast, despite the Government describing it as a key component of the new Bill, it was introduced only by amendment late in Committee in the other place, driven, I understand, by the last-minute events in Ukraine. This delay has meant that there has not been sufficient time to scrutinise this very complex regime. We now have time to consider it and, as an aside, bearing in mind thoughts of abolishing this House, thank goodness for our Chamber’s ability to actually do that.

I believe that noble Lords will find the same as the ISC, that, as it stands, the scheme is too complex, compared to similar schemes in the United States, for example, while at the same time not going far enough. It is separated into two registration tiers: the first captures all arrangements and activities that are undertaken on behalf of any foreign power for the purpose of influencing a political event or decision. This is a welcome provision, providing an additional tool to disrupt clandestine foreign activity that is intended to influence our democratic institutions. The second, enhanced tier of registration will capture all other activity beyond political influencing. It will capture, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, such activity has to be undertaken on behalf of a country set out in secondary legislation. It therefore does not apply to every country automatically.

It is difficult to understand why, unlike with comparable schemes in the US, there are two tiers and why the registration of harmful activity outside political influencing applies only where the foreign power is set out in secondary legislation. It is possible that harmful operations will be undertaken by countries that are not named in the regulations and so will not require registration. Requiring all countries to register such activity would act as a far stronger deterrent, helping the authorities prosecute such behaviour and making the UK a more challenging environment in which to operate.

Listing countries by regulation will also be a challenge to use in practice. It will take time for the Government to agree which countries to add, particularly given the potential diplomatic ramifications, when flexibility and pace may be required. These flaws will inevitably lead to the enhanced tier, which could have been a valuable tool, not being used. As the Security Minister recognised in Committee in the other place, the use of this enhanced registration requirement will be “limited”. This is a wasted opportunity, undermining a potentially effective tool. It must be more effective to have one tier that applies to all countries and a broad range of covert activity. That may require there to be a greater number of exemption categories, but it would surely be a simpler and more practical system of registration.

Little thought also appears to have been given to the transparency of the scheme. While the Security Minister has said that the registrations under the primary tier will be published, he confirmed in Committee in the other place that those relating to the enhanced tier, reflecting the most damaging activity, will not be published. There is no reason for that disparity. While there may be a national security reasons justifying why certain information cannot be made publicly available, that will not always be the case. Transparency is at the heart of the scheme and, in order to avoid it being fundamentally undermined, details relating to the secondary tier must be published.

For the scheme to work effectively, the Home Office team supporting it must be properly resourced. That unit will be responsible for scrutinising submitted documents, identifying risks and updating the register, yet in Committee in the other place the Security Minister said:

“It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny.”—[Official Report, Commons, National Security Bill Committee, 18/10/22; col. 401.]


The Government clearly believe they can save money by not resourcing a team at the Home Office and relying on the public, a position completely undermined by the fact that details relating to the enhanced tier are not going to be published so the public will not know what to report. We believe that a failure sufficiently to resource this crucial unit or an overreliance on public scrutiny will fundamentally undermine the regime’s effectiveness.

I turn to the important Clause 28, about which Members of the other place had serious concerns and which the ISC cannot recommend to this House. Clause 28 disapplies the offence of encouraging or assisting offences overseas under the Serious Crime Act 2007 when the activity is deemed necessary for the proper exercise of any function of an intelligence service or Armed Forces. Put simply, it provides a rare carve-out from liability for the intelligence agencies and armed services when working abroad. Colleagues in the other place, particularly those from the ISC, question the justification for such a broad exception from criminal liability. There is already an offence of acting reasonably under Section 50 of the Serious Crime Act. Further, the agencies can already seek immunity from liability for any act committed abroad under Section 7 of the Intelligence Services Act 1994. The lack of a proportionality requirement and the absence of an oversight mechanism were also criticised.

The Bill Committee in the other place recognised that there may be highly classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government committed to provide the ISC with that highly classified material. The ISC has now considered that highly classified material, which was taken in evidence, and I can tell the House that the committee is of the view that Clause 28 potentially identifies a legitimate problem, which is that, despite the existing legislative protection, there may still be a risk of criminal liability for junior members of the intelligence community and the military, even when acting within the remit of their duties, which could have an impact on operations. Indeed, to be fair, there have been historical instances where military and agency junior ranks in the field have effectively been hung out to dry when doing their best to fulfil what they see as their duty. The ISC therefore sympathises with the aim of the clause.

Nevertheless, the ISC is also firmly of the opinion that the clause goes considerably beyond what is needed and is not appropriate as drafted. While the existing mechanisms to avoid liability may not be comprehensive, that does not justify such a broad automatic exemption with such limited accountability. The clause must be either significantly amended or replaced entirely. The ISC has been given an assurance that the Government are looking to find a way to meet its concerns. They must work quickly to identify a more appropriate approach, as the current clause is unacceptably broad, and we cannot support it as it stands.

If there were time, I would draw noble Lords’ attention to a number of other important points that were raised by the ISC and other colleagues in the other place; no doubt we will consider these as the Bill progresses. I particularly note the need to consider simplifying the “trade secrets” definition in Clause 2 to make the offence more effective in practice; the need to expand the “foreign interference” offence to cover recklessness as well as intent; the concern that the state prevention and investigation measures be used only as a last resort; and exhortations to extend the oversight provisions in Clause 54 across the rest of the Bill.

The ISC firmly supports the aims behind the Bill, but it requires careful analysis and considerable improvement if it is to strengthen the ability of law enforcement and the intelligence community sufficiently to manage the significant threat posed by hostile state actors, and if the UK’s new national security regime is to be comprehensive and effective. We echo what was said about the bravery and efficiency of the agencies, and what they achieve. The Bill will be very useful for them in making our nation safer, but it needs a certain amount of amendment.

Counterterrorism: Martyn’s Law

Lord West of Spithead Excerpts

Wednesday 23rd November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I am sorry to disappoint the noble Lord again, but I will have to stay on the hook. The fact is that it will be as soon as parliamentary time allows. I cannot improve on that answer.

[Lord West of Spithead (Lab)]

My Lords, in 2009, I signed off a mass of work to do with security in crowded places. My right honourable friend was in a nearby office at the time and we increased the number of NaCTSOs, as well. Can the Minister confirm that that work—a great deal of work—on exactly this stuff is being looked at and used in the context of this legislation? If not, as with so many things, we will be going round and round in circles.

[Lord Sharpe of Epsom (Con)]

As I say, the Government are still working on this and all aspects of it will be included in the legislation and in the other things I have referenced, such as the Contest and Protect strategies.

Ukrainian Nationals: Visitor Visas

Lord West of Spithead Excerpts

Tuesday 22nd March 2022 Lords Chamber

[Lord Harrington of Watford (Con)]

I cannot give my noble friend that undertaking because I am not sure, but I will know within minutes of sitting down what the answer is. We have certainly ensured that there are welcome signs and packs available at the airports for those who need Russian. However, we have been told that many Ukrainians are quite offended by the use of the Russian language, so we have to be careful.

[Lord West of Spithead (Lab)]

My Lords, we have huge admiration for the fighting ability and bravery of the Ukrainians fighting against the Russians, and it is important that they should continue that fighting for as long as possible, because that will mean a better outcome at the end when things change. You fight far better when you know that your family and loved ones are being looked after and are safe and being taken care of—not just while you are fighting but should you be killed. Does the Minister not believe that we should bend over backwards in every single way to look after Ukrainian refugees, to ensure that it is in our benefit and that it is the right and proper thing to do?

[Lord Harrington of Watford (Con)]

I agree totally with what the noble Lord said. Everyone in the two departments I am involved with is certainly instructed to ensure that refugees are treated in a humane, compassionate way, understanding that many have had very traumatic experiences before they get here.

Intelligence: Russia

Lord West of Spithead Excerpts

Monday 31st January 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Lord makes an appealing point but the situation is far more complex than that. Particularly with the unexplained wealth orders legislation that I brought through a couple of years ago, it is not as easy as just compulsorily purchasing houses.

[Lord West of Spithead (Lab)]

My Lords, I declare an interest as the House of Lords member of the Intelligence and Security Committee. These reports are done in huge detail, with huge inputs from people who know a lot about this. Particularly in the case of the Russian report, it took a very long time for it even to be taken note of by the Prime Minister. Can the Minister ensure that reports such as that—other reports are on their way—are actioned rapidly and moved forward, rather than being effectively sidelined?

[Baroness Williams of Trafford (Con)]

I agree with the noble Lord’s point. Ongoing work is being done to implement the recommendations in the report, many of which do not need legislation. However, the noble Lord makes an absolutely valid point.

Ten-Year Drugs Strategy

Lord West of Spithead Excerpts

Thursday 9th December 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

From some of the contributions that we have heard today, clearly some of the propaganda works. Drug consumption rooms are in Scotland, and they do not work. Scotland has a huge drugs problem, and its strategy clearly has not worked. This is not a strategy for the whole UK but aligned to the devolved and reserved policies led by the six contributing departments; we continue to work with devolved authorities, so certain aspects cover England, Scotland and Wales. I am very glad that the noble Lord mentioned it, because he is absolutely right.

[Lord West of Spithead (Lab)]

Is there going to be any detailed work on looking at the relationship between violent crime and the constant and steady use of marijuana, particularly the refined types of marijuana?

[Baroness Williams of Trafford (Con)]

I can tell the noble Lord from my own personal experience that I have seen some horrific outcomes from the use of synthetic marijuana, and not only on children, with the effect on the growing brain leading to schizophrenia and other things. It can also lead on to the development of paranoia and all sorts of other things, including violence. I completely agree with the noble Lord that some of the linkages are quite clear. Of course, it is what it goes on to develop to, with the use of other drugs as well.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord West of Spithead Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[The Deputy Speaker (Lord Alderdice) (LD)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.

[Lord West of Spithead (Lab)]

My Lords, I felt initially that in Amendment 1 it was necessary and sensible to have the term “reasonable belief” in the Bill, but the inconsistency with RIPA 2000, the Solicitor-General’s statement in the other place and the changes that have been made to some of the paragraphs have now persuaded me that it is not necessary.

I view Amendment 2 in a much more serious light. We should be proud of the fact that our nation is at last putting our covert human intelligence agents’ behaviour on a statutory basis. We must not lose sight of the fact that agents save lives. In working undercover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration at all to say that they could be killed. My experience in Northern Ireland certainly backs that up. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. These safeguards have been strengthened by the work of this House, and we should be proud of that.

It will not help anyone if we put checklists of offences on the face of the Bill—nothing at all would be gained by that. The safety of CHIS should be central to the decisions of this House. We must not forget that they are very important individuals who are doing important things for us. I am afraid that this amendment also ignores that fact. Drawing parallels with the United States and Australia is dangerous and totally irrelevant. If there is a Division on the amendment, I will vote with the Government on this issue.

The Government have been somewhat vague about why they have opposed Lords Amendment 3 on the issue of criminal compensation but have now brought forward their own Amendment 3B, which shows that they have absolutely understood its necessity. The point was well argued by the noble Lord, Lord Anderson. I am happy to support government Amendment 3B. It meets the concerns of the House and provides assurances on the matter in the Bill, which is good.

On Amendment 4, I have thought long and hard about the use of adolescents. When one heard about this initially, one was taken aback, but I have come to realise that, to some extent, the concern about juveniles in relation to the Bill is due to the conflation of the broader question of whether under-18s should be used as CHIS at all. That of course is not the matter at hand that we are discussing, rather it is the narrower issue of whether those involved should be able to participate in criminality and with what safeguards, which is what the Bill addresses. On those CHIS below the age of 16, I now believe that, in very exceptional circumstances, we should use them. The government amendments will put appropriate safeguards in place which will ensure that that can be done with maximum gain and minimum risk.

The other place quite rightly accepted the core element of Lords Amendment 5, which requires all CCAs to be notified to judicial commissioners as soon as possible, and within seven days of being granted. The Government have come back with Amendment 5A, which would require any such activity to stop immediately, except where the judicial commissioner had allowed specific activities to continue for the purpose of discontinuing the authorisation, and they have of course amended the code of practice.

In the other place, the Solicitor-General said:

“On the extremely rare occasions where a judicial commissioner may find issue with an authorisation, the public authority will consult with the commissioner and may indeed stop, or not commence, the activity that they planned to commence. However, this should not be at the expense of the safety of the CHIS.”—[Official Report, Commons, 27/1/21; cols. 428-29.]


This final sentence is compelling for me. To take a hypothetical example, if MI5 authorised activity that was considered essential to the maintenance of a CHIS’s cover, requiring this activity to stop immediately could very well blow that cover and put their safety at risk. As I have said a number of times, the safety of CHIS has been central to the way this House has considered the Bill, and that is important.

The noble Lord, Lord Paddick, appreciated that fact, and his Amendment 5B would not require activity to cease immediately. However, I cannot support his amendment as I believe—indeed, I know—that the notification of prosecuting authorities will cause real problems from a practical and operational point of view, particularly for the agencies and their ability to run CHIS.

In summary, I believe the House should be proud of what it has done on the Bill by putting it on a statutory basis. Anything in this area is always unpleasant, but I believe that the Bill is necessary and a useful piece of legislation.

[Lord Young of Cookham (Con)]

My Lords, I will speak very briefly to Amendment 4, which deals with juveniles and vulnerable adults, and the government amendments to that part of the Bill. The background to this is the debate we had on 13 January, when a group of amendments, led by Amendment 12 in my name, sought to remove children aged under 18 and vulnerable adults from the Bill’s scope entirely. While this secured support from all sides of the House, it was clear that without support from the Official Opposition it was doomed. Therefore, I withdrew it.

The House then coalesced around Amendment 24, in the name of the noble Baroness, Lady Kidron, whose impact on this debate has been substantial. I pay tribute to that. I also supported her amendment, although it did not go quite as far as Amendment 12. Her amendment trumped government Amendment 26 in the same group by offering additional safeguards. Although the Government described these as unworkable, the House supported Amendment 24 in a Division by 339 to 235. As we heard, this was rejected in another place and we now have the government amendments we debate today.

My view, which is shared by the Children’s Commissioner, is unchanged—namely, that we should exempt children and vulnerable adults—but I accept that that will not happen. What we now have is a welcome improvement on government Amendment 26, and I am grateful to my noble friend for listening to the concerns and meeting them where she felt she could. I also pay tribute to the work of Stella Creasy in taking the debate forward.

Some relevant questions on the government amendments have been raised by the noble Baronesses, Lady Hamwee and Lady Kidron. I hope my noble friend will feel able to continue the dialogue once the Bill reaches the statute book, to focus again on the code of practice, in particular to consider extending the protections in the Bill to all children used as CHIS, not just those authorised to commit criminal conduct, and to reconsider the issue of appropriate adults for those aged under 18. In the meantime, I am happy to support the government amendments.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord West of Spithead Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I, too, thank the Minister for all the consultation she has gone through, and the Government for their flexibility in adjusting the Bill to the stage it has reached. I am also always pleased to follow the noble Lord, Lord Carlile, and find that I think along the same lines as him, as I did when I was the Government’s Security Minister and he was outside the box, looking in to make sure that we behaved.

I am speaking against the amendment of the noble Baroness, Lady Jones, albeit that she put it eloquently. We should be proud of the Bill. Putting our covert human intelligence agents’ behaviour on a statutory basis is to be praised. As I have said, agents save lives. In working under cover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration to say that they could be killed. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. This has been strengthened in our debates and we should be proud of that. The ISC believes that there is a need for such authorisations. It also supports the Government’s decision not to place limits on criminal conduct in the Bill itself for the reasons that were debated.

I have thought long and hard about the use of children and I have to say that, initially, I was very concerned about it. As an aside, I do not consider 16 to 18 year-olds children, but that is a different issue. As regards the use of those aged below 16, I now believe that they should be used in exceptional circumstances, and appropriate safeguards are in place to ensure that that can be done to maximum gain and with minimum risk.

In summary, as I say, we should be proud that we have put this issue on a statutory basis. The Bill is a necessary and useful piece of legislation.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord West of Spithead Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

It is a privilege to follow the noble Lord, Lord Cormack, and I associate myself with his remarks about the noble Baroness, Lady Chakrabarti, and her desire to clarify and improve the Bill. In no way should her motives or actions be impugned.

Because this will be a long debate, I will speak only briefly about Amendments 21 and 22, to which I have added my name. If we are to legislate and to put this regime on to the statute book, we must have absolute clarity. The amendments establish that degree of clarity in relation to criminal and civil responsibility. I attach particular importance to the issue of criminal responsibility because in such a matter, it is very important that we keep alive elements of deterrence to show that the law can act swiftly and clearly if people corruptly misconduct themselves in public office or go much more seriously into criminality in authorising crimes. The noble Lord, Lord Anderson, set out with admirable clarity the changes that are required. I would not think that assurances given by a Minister would be adequate in this case. A statutory regime must start and end with a statute.

[Lord West of Spithead (Lab) [V]]

My Lords, the Intelligence and Security Committee, which I sit on, welcomes the introduction of this Bill to Parliament. We strongly support the principle behind the legislation. Covert human intelligence sources, or agents, provide invaluable information to assist the security and intelligence agencies in their investigations. They play a vital role in identifying and disrupting terrorist plots. They save lives. In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information the authorities need. This may require them to act in a certain way. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they do not, it is no exaggeration to say that they could be killed. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. The Bill places the existing powers that certain organisations have to authorise such activity on an explicit statutory basis. We believe that there is a need for such authorisations and we have seen real examples where this has saved lives.

For these reasons, I oppose Amendments 1 and 2. CHIS who have been asked by the state to commit criminal acts should have some certainty that they will be afforded protection from prosecution—now of course on a statutory basis, not the informal basis on which it was done before. When carrying out often dangerous work on behalf of their authorising organisations, they need that certainty.

Having said that, I am reassured that the Bill does not prevent the prosecuting authorities considering a prosecution for any activity outside the specific conduct authorised in the CCA. That properly authorised conduct is now lawful makes it all the more important that these provisions be subject to rigorous safeguards and oversight. In that vein, I strongly support Amendments 21 and 22 in the name of the noble Lord, Lord Anderson.

[Lord Naseby (Con) [V]]

My Lords, it is a privilege to follow the noble Lord, Lord West. I am not a lawyer but I have had the privilege to serve in both Houses for nearly 50 years now, and prior to that I was in Her Majesty’s forces. I specialise globally in south and south-east Asia, where I worked for a number of years. I am essentially a practical man. I have suffered a death threat from the IRA, so I have seen the rough side of political life as well.

We need to understand what it is that we ask the men and women to do who safeguard our communities, our society, our country. That cannot possibly be an easy job. It is a very taxing job and we need it to be done within a framework of surveillance and some control, but not such that they are restricted or confined, as the noble Lord just pointed out. There is a practical side. It would never work if you went too far that way, and frankly, Amendments 1 and 2 do that. I am not reassured by the views of Justice. I am particularly not reassured by the stated views of some of the NGOs and others in what I would call the human rights vehicle. Therefore, I will not support Amendments 1 and 2.

I understand why Amendment 3 has been tabled. As I read it, it seems to weaken the current situation, but I will listen to what my noble friend the Minister has to say. I also understand why Amendment 4 was tabled, but perhaps it would undermine the Bill in a way that is not obvious to me, as a non-lawyer.

Turning to Amendment 21, the noble Lord, Lord Anderson, is a very persuasive and clearly very thorough lawyer, and I am pleased to hear that he has had discussions with my Front Bench. I shall listen with care to what the Minister says on Amendment 21 in particular. However, I urge all of us to reflect on the reality of life today. We live in a very difficult world, and we need to make sure that the honest, genuine people who want to help maintain the security of our country and to keep our people safe can do their job properly, so that our society can flourish.

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this, currying some favour, I hope, with the Government Whip that will be taken on board when I speak in a later group to my own amendments once more. It is a great privilege to follow the noble and learned Lord, Lord Mackay of Clashfern. Your Lordships heard it from him: when is a crime not a crime—when it has been pre-authorised with immunity attached in advance? That would be a difficult thing to explain to most members of public. However, it is not so difficult, perhaps, when you compare it with intrusions into our privacy, which is where this model comes from.

The complexities of this debate just make me sadder about where we got to in the previous one. We now have to decide about safeguards, because your Lordships have potentially created a breath-taking immunity. Under existing surveillance law, there are different models: it takes a magistrate to authorise an intrusive search of your premises; it takes a Minister to authorise the tapping of your telephone; yet inserting an undercover agent—more intrusive than either of those two measures, because a human will change your behaviour, not just monitor it—is internally authorised. Now, we have gone further, and a crime can be committed, authorised by the Executive, authorised by the police for their agents, authorised by the intelligence services for their agents, and so on.

Clutching at straws for safeguards, I have to support some kind of external authorisation at the very least. If it is good enough for search warrants and telephone taps, it must be even more necessary when criminal conduct, including violent conduct, might be authorised. As for which model, I have heard the arguments either way, and I tend to think political warrantry of something so politically dangerous is problematic, and it has proved so in the past. Former Government Ministers have written in their memoirs about how tired they were when, late at night, they were making endless intrusive surveillance authorisations. It is not about hollowing out the state; it is about trying to insert independence into the realm of criminal law. I admire the thrust of the eloquent speech of the noble Baroness, Lady Wheatcroft: if Government are to do such a thing, they should take some responsibility, not just for legislation but for authorisations.

We heard from the noble Lord, Lord Butler, with his enormous experience, his prediction that there will be some low-level warrants here and a very large number of them. This would present a real problem if it was political warrantry, because Secretaries of State have a lot to do, and there are going to be a lot more warrants under this legislation than those limited to, for example, the security services.

These are all imperfect checks and balances but, on balance, at the moment I prefer judicial authorisation, even though that will, in my view, bring dangers for the judiciary. Post-notification authorisation is a very weak protection but, if it is to happen, I agree completely with the noble and learned Lord, Lord Thomas of Cwmgiedd, that Amendment 33 without Amendment 34 is pretty much a nonsense.

[Lord West of Spithead (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. She kept me well aware of civil liberties for three years when I was the Minister with responsibility for security, counterterrorism and cybersecurity, and she did it with complete purity of purpose. I do not think that anyone should have a go at her for anything other than that, so it is a pleasure to follow her.

An awful lot has been said already and time is running short. I am strongly supportive of judicial oversight of these powers. Looking at the package of amendments before us, Amendment 33 appears to be a balanced and practical proposal, and I rather like it. However, the noble and learned Lord, Lord Mackay of Clashfern, has convinced me that, in a sense, it has to be looked at in conjunction with Amendment 34, in the name of the noble and learned Lord, Lord Thomas, because the two sit well together. The Minister needs to look at them, as together they would achieve what we want in this very sensitive area.

On Amendment 16, I have considerable sympathy with having a Minister involved, but there is an issue with how many things one has to sign. I found that, when I was a Minister, I had all the dross and had to pass the really meaty bits up to the Home Secretary, who seemed to think that she was rather overloaded anyway—and that was after I had taken a hell of a lot of the weight away. So there is an issue there.

We also need to look at the wording of that amendment very carefully. Saying that one of these people is “employed” is quite specific and tricky. Similarly, the wording of Amendment 23 is slightly unclear, and we need to be careful. However, the amendment that I really like is Amendment 33, probably in conjunction with Amendment 34.

[Lord Rooker (Lab) [V]]

My Lords, it is an absolute pleasure to follow my noble friend Lord West of Spithead.

There are some amendments in this group that I object to, and I shall vote against them if they are pushed to a vote. I want to restrict my remarks to two amendments—Amendment 16 and Amendment 33 with its consequentials.

I am a bit confused about Amendment 16 in the same way as my noble friend Lord West has just alluded to. I have massive respect for my noble friends Lord Hain and Lord Blunkett. I operated as Minister of State for each of them for a year—at the Northern Ireland Office, under direct rule, and at the Home Office. In both cases, my role involved purely domestic policy—the only time I got close to anything remotely related to this was at the Northern Ireland Office on two of the 13 duty weekends that I did in a year.

However, as I made clear in Committee, I simply do not agree that the Secretaries of State should be involved in the issuing of authorisations. We are talking here about a level of detail and relationships with people—probably long term, in the case of many CHIS—that means it is just not possible, practical or, in my view, proper for Secretaries of State to be involved. I agree completely with the arguments put forward, both this time and the previous time, by the noble Lord, Lord Butler.

As for paragraph (b), which would require the CHIS to be an employee, as my noble friend Lord West has just referred to, I am at a slight loss to understand it. The Bill is not talking about undercover police officers who are employed as police officers, or undercover security officers employed by the security services. We are talking about a range of people with civilian occupations who are employed by other authorities—I will give some examples in a minute—or about common criminals, who are probably not employed by anyone. So I do not understand the idea that they have to be an employee of the authority. That simply cannot be done; it is a contradiction.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

It is a pleasure to follow the noble Baroness, Lady Chakrabarti. She mentioned complacency in the speeches of a few noble Lords, and it seems that people are missing the point of the measures in this Bill. The Government make a great play of “This is all to catch paedophiles and terrorists”, whom obviously we all want to catch, but they ignore the human rights legislation that will inevitably be transgressed. We know the long history of abuses by undercover police, and the thought that humans can change is absolutely ludicrous, in the sense that human nature will always involve a group of people who think that they can get away with doing things that the rest of us should not. I am afraid that in the past officers have been allowed unlawfully by senior officers to do things, and this does not mean that they will not do it again: they will do it again. For example, the undercover inquiry has taken years to reach a point at which there is a judge in control—one who, I would argue, is not doing a very good job. The progress is incredibly slow and survivors of this sort of abuse should not have to wait so long for justice.

This group contains important amendments on two issues: ensuring that these powers are used only against serious offending and ensuring that they are not used to encourage offending. I have signed only one amendment in this group, but they are all sound. I wish that I could trust the Government and the authorities enough to make Amendment 11 an absurdity, but history shows that this state can and does misuse power in order to undermine and stifle dissent and opposition. The face of the Bill should make clear beyond any doubt that agent provocateur conduct is illegal and can never be authorised, otherwise we can be sure that sooner or later this power will be used for that purpose.

[Lord West of Spithead (Lab) [V]]

My Lords, I join in passing best wishes on to James Brokenshire. The noble Baroness, Lady Chakrabarti, talked about the calmness of debate with him. We have been talking now for some hours on an issue which a lot of us feel very strongly about in all sorts of directions, and it is rather good that it is carried out in such a sane and balanced way, with people putting very strong points of view without storming buildings—but enough of that.

I wish to speak to Amendments 8, 9 and 11. These would impose limits, albeit somewhat vague ones, on the types of criminal conduct and activity that could be authorised. The Intelligence and Security Committee supports the Government’s decision not to place limits on criminal conduct or on the activity which can be authorised on the face of the Bill, as this would undermine the effectiveness of future operations and put agents’ lives at risk.

It is unsurprising that there is speculation about the more serious forms of criminality and calls for curbs to the power and for limits to be put in the Bill—I understand that. However, there are clearly concerns, and the committee strongly supports the Government’s decision not to put them in the Bill—although, of course, this places an even greater emphasis on the need for robust safeguards, which we were talking about and voting on earlier this evening.

As a member of the ISC, I can offer some reassurance by saying that we have had full briefings on how MI5, for example, uses these authorisations at a very secure, secretive level, and we are reassured and satisfied that it uses them appropriately. I can also point to the European Convention on Human Rights: all public authorities, including those covered by this Bill, are bound by the Human Rights Act, which commits them to adhere to the ECHR, which includes the right to life and the prohibition of torture. The Bill is clear that all authorisations will be compliant with the ECHR and that the activity being authorised will be “necessary” and “proportionate” to the criminality it is seeking to prevent. On that basis, I will vote against the amendment.

[Lord Beith (LD) [V]]

My Lords, I add my thoughts for James Brokenshire, who was a member of the Justice Committee when I chaired it; I respect him and hold him in the highest regard, and I wish him well, as others have.

It is pleasure to follow the noble Lord, Lord West; I recall taking evidence from him when I was a member of the Intelligence and Security Committee. Now that he has gone from poacher to gamekeeper, I hope he is applying similar zeal to the scrutiny and examination of these very issues. I hope that the ISC will take a continuing interest in this legislation when it is on the statute book.

During my time on the Intelligence and Security Committee, I was concerned about the unspecific and broad nature of the “economic well-being” justification as a basis for approving various forms of action. Of course, that was in relation to intrusive surveillance powers, not the sanctioning of criminal acts, which we are discussing today; indeed, since that time, the economic well-being justification has been qualified in the same terms as those which Amendment 9 uses.

I raised my concerns in Committee on 3 December, and they echo the concerns expressed by the Constitution Committee, of which I am a member, in its report on the Bill. It was disappointing that, on 3 December, the Minister’s reply did not answer or even refer to the concerns I had raised. She had had a long day, and she has had an even longer one today, but I hope that I can provoke her to make some things clearer.

In that debate, I said that there are obviously threats to the economic well-being of the United Kingdom that are as serious as physical threats to that security. I included

“action by a hostile state or a terrorist ... group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems”—[Official Report, 3/12/20; col. 870.]

as well as government communications and many forms of cyberattack.

I will suggest three other areas which might involve action by hostile states or extremists and might be candidates for authorisation. I do this simply to illustrate how broad the concept of economic well-being is. The current pandemic is, undoubtedly, a threat to the economic well-being of the United Kingdom. Could there be a future pandemic situation in which we believed that the reckless behaviour of other countries or deliberate action by extremists was making the spread of the pandemic significantly more dangerous? Would that qualify if some form of participation by an agent or human intelligence source seemed likely to help us fight the threat? I think it probably would.

I will give another example. The way the Brexit future relationship agreement is implemented could certainly affect the economic well-being of the United Kingdom. Could that justify deploying intelligence resources, including covert human intelligence, involving themselves in criminal acts? That is not quite so clear.

I offer a third example—that of a major overseas defence and civil engineering contract, affecting perhaps as many as 10,000 jobs in Britain, where there are fears of bribery, corruption and money-laundering, and of those distorting the outcome. What if a different British company is involved in the rival bid for this contract—these bids normally come from consortia involving companies from several countries—and that company considers that it would be very adversely affected by action which might have been begun by someone qualified through this legislation? The economic well-being justification is clearly not a simple matter in such a situation.

I am not asking the Minister to comment on those three hypothetical examples individually. What I want her to consider is, first, whether the economic well-being justification should be so broad. Secondly, if it is not to be qualified by reference to national security, as Amendment 9 in the name of my noble friend Lord Paddick requires, how else can we be confident that it is not inappropriately used? The use of this justification for serious criminal action has not really been the subject of much ministerial comment, and its scope will depend heavily on how future CCAs will be viewed in retrospect by the Investigatory Powers Tribunal and by the commissioners. This approach does not give us much confidence that applications to authorise criminal conduct in relation to economic well-being issues will be considered by authorising officers against a well-understood test of what is justifiable. We have to bear in mind that these authorising officers are in a wide variety of organisations, some of which have long experience of intelligence work and some a great deal less.

The Constitution Committee said in its report:

“While we recognise that threats to the ‘economic well-being of the United Kingdom’ may justify a security response, we are concerned about the use of such a broad concept to authorise serious criminal conduct. The House may wish to consider whether the authorisation of criminal conduct should require more specific justification than a general invocation of the need to protect economic well-being.”


That is what we are doing in this short debate tonight. I would like to hear a clear statement from the Minister on how we might establish clear principles against which to test whether authorising criminal action under so broad and vague a headline as “economic well-being” will, in any future instance, be proportionate and justifiable. Would it need to be a threat to economic well-being of a kind that would, in effect, be a threat to the security of the United Kingdom? That is really what the amendment suggests.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord West of Spithead Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I am honoured to follow that excellent and very moving maiden speech by the noble Lord, Lord Walney. He talked of Walney Island, and I know that area. What he did not mention was that it has an airport built at right angles to the prevailing wind and about as long as this Chamber, so if any noble Lords are thinking of visiting there, they will have a very fun arrival if they go by air.

I have known John, the noble Lord, Lord Walney, for more than 10 years. He is a highly principled man, and I was particularly impressed, first, by his confrontation of anti-Semitism within the Labour Party, which he drove through with great vigour; and secondly by his passionate support for an issue very close to my heart and those of his ex-constituents, which noble Lords heard him mention—the UK’s independent deterrent and nuclear submarines. Neither issue made him popular with the last leader of the Labour Party, but he refused to compromise his beliefs. Rather like his namesake in the 17th century, he was martyred, although I doubt that—unlike his predecessor—he will be beatified by the Pope. The noble Lord, Lord Walney, will be of great value to this House. We already got that from what he said, and I look forward very much to working with him.

The Intelligence and Security Committee of Parliament, of which I am currently a member, welcomes this Bill. Agents provide invaluable information and play a vital role in identifying and disrupting terrorist plots. Basically, they save the lives of our people. However, can the Minister assure the House that, in putting the existing powers on a statutory basis—which needs to be done because of the legal shenanigans going on at the moment—the Bill does not extend them in any way at all? It is essential that these powers are properly circumscribed and used only where necessary: they have to be proportionate. They should be compatible with the Human Rights Act—let us face it, we are all responsible for ensuring that—and subject to proper oversight.

The Minister will be aware that the Intelligence and Security Committee proposed an amendment to the Bill in the other place relating to parliamentary oversight. I have lost sight of where that has gone; perhaps the Minister will let us know where that proposal stands. The committee clearly knows the agencies very well, but it has also taken evidence—very sensitive evidence—from the police in a number of its inquiries, and from that knowledge would support their use of these powers. I would, however, need convincing that a number of the other authorities really do need these powers.

The Intelligence and Security Committee strongly supports the Government’s decision not to place limits on criminal conduct in the Bill itself. My own operational experience would reinforce that because of the risks it would place on our agents. Clearly, that means even greater emphasis on the need for robust safeguards. I can offer reassurance to the House that the Intelligence and Security Committee has had comprehensive briefings on how these authorisations are used, and we are reassured and satisfied that they are used appropriately by MI5. Will the Minister say, however, what percentage of criminal conduct authorisations—they have been mentioned already—the Investigatory Powers Commissioner will actually examine?

I reiterate that I strongly support this Bill, subject to the caveats I touched on. I have not had time to go into other areas, such as the use of children, but I hope that these things will be investigated in Committee. There is no doubt that these agents save lives and are at great risk themselves. We must be careful not to pass legislation that, with amendments, leads to agents being killed.