National Security Bill (First sitting)

Antony Higginbotham Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Sally-Ann Hart]

Q We heard from the previous witnesses about the challenges of online harm—sabotage and dis, mis and malinformation—and the Bill seeks to modernise the espionage regime to meet the challenge of the digital age. Do you think it will achieve that aim and where are the gaps, if any?

Paddy McGuinness: I would expect it to be a dynamic process. I think you will be looking at further legislation; let us hope you have a long life as an MP, but in your time as an MP I would expect you to have to look at this again.

To Sir David’s point, I do not think we should delay for a moment fixing the things that the Bill fixes because of the fact that technologies develop dynamically. There is a lag. I can remember—I think I was actually working at GCHQ at the time—us thinking about what was happening with Facebook as it emerged as a widely used platform. Here we are with the Online Safety Bill, about 13 years later. There is a natural and quite proper lag between rapid technology innovation and slow and considered regulation and legislation, and we are going to have to live with that. I think this is good. It provides a basis, and I think the extraterritoriality is particularly important, as is the way in which sabotage is broadly defined to allow you to deal with the kind of range of things that I have been talking about, given that the opponent will move through those spaces.

[Antony Higginbotham (Burnley) (Con)]

Q The other day the director-general of MI5 and the director of the FBI said that most of what is at risk by quantity is not what the state does, but the technology, research and development and commercial advantage developed by our businesses and academic institutions. Does the Bill do enough—I am thinking mainly about the offences part of it—to protect against that risk?

Paddy McGuinness: I think it does a very significant thing in the way in which it criminalises specifically the trade secrets aspect, which covers a very broad range. Again, we may have to return to this. This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.

It does not feel as though we have quite the same volume of opencast mining of our intellectual property and economic value that we had, as was described previously by General Keith Alexander, the head of the National Security Agency in the US. He described the enormous volume—trillions of value—taken out of our economies. There still is a very high level, though, so there is more work to do on this, and it is a significant challenge to the corporate sector to do the right thing in this space, because of the difficulty that it represents. The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.

[Antony Higginbotham]

Q That is really helpful. They also said in the same speech that our opponents have a whole-of-state approach to further their aims—you touched on this. Does the Bill do enough to join us up and ensure that we have got that whole-of-state view on how we defend against espionage, sabotage and so forth? Or is that not realistic because of the evolving threat?

Paddy McGuinness: One must constantly avoid complacency, but one of the strengths of the British state is the way in which institutions and agencies work together pragmatically and practically—within the bounds of law, obviously. That is how we have managed to get this far, with a lack of powers, without something going catastrophically wrong. It has felt really nerve-wracking doing it. As the person who had to represent it to Prime Ministers and the National Security Council, my word I was nervous about this. I was much more confident in other areas of my responsibilities, because there was a real shortfall. The Bill closes out quite a lot of that.

I would note something that I think reads across several of the points that have been made by the previous witnesses that I have heard today that it is important for the Committee to understand and for me to represent. When you are dealing with state threats, and in particular against really capable actors, that is a different task from dealing with terrorism or serious and organised crime, because we must work on the assumption that some of our communications, some of our computers and some of our people are under their control.

When I look at, for instance, the STPIM powers, I reflect that it is much more difficult still to bring prosecutions in this area than it is for terrorism and for serious and organised crime, where sometimes people have been suborned by the crime group. This is all together more serious, and it would be naive to think that no one spies for a foreign country, no communications are intercepted and no one is in any of our computers. That just raises the level of difficulty that we have got in this space.

[The Chair]

Thank you very much. That brings us to the end of the morning sitting and the time allocated. On behalf of the Committee, I thank Mr McGuinness for giving evidence today.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

National Security Bill (Second sitting)

Antony Higginbotham Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Holly Lynch]

Q Given some of the conversations we have had with the prior witness panels, are there other examples of best practice from around the world in respect of the influence of foreign states, particularly online? Have other countries—other legislatures—got some of the answers that we perhaps do not have in this legislation?

Professor Ciaran Martin: A lot of countries have struggled with it, and it goes beyond just legislation, if I am honest. In terms of things like disinformation, quite interesting were some of the things that the French did in 2017, when there was the Russian attempt to do something and they deliberately sort of cast doubt on the integrity of it. They knew the information was being, in effect, data dumped, but they are believed to have done some alterations so as to cast doubt on the authenticity of the whole thing.

In terms of civic society and discourse, in advance of the 2020 election the Washington Post editorial board did something really interesting. Although it did not come to pass in the way that it did in 2016, they issued a proactive statement to say that if they received very sensitive political information but from a suspect source that was likely to be a foreign intelligence service, they would treat it differently from, say, a leak from within the United States—they might sort of print it differently. There is a discussion about how we handle the outcomes of disinformation, on the assumption that it might happen. That is one idea.

On the other hand, on the duties to protect within Government, for example, we are not always very good at gradations of harm. When I started in the civil service at the end of the last century there was still this approach that any leak of any data was potentially quite serious. These days, there is far too much information to take that approach—things are going to leak all the time. We need to focus on an understanding of harm caused and the duty to protect the most sensitive information.

[Antony Higginbotham (Burnley) (Con)]

Q Thank you for your time, Professor. We talked with a previous panel of witnesses about the so-called Confucius institutes, and there was discussion of the fact that the British state may be inadvertently employing agents of foreign powers. Given your work in academia, what are your views on those institutes? Do you think the Bill should seek to restrict or criminalise them?

Professor Ciaran Martin: It is for your detailed scrutiny to work out whether you think that activity that is clearly on behalf of a hostile state is adequately deterrable and punishable by this Bill. It is quite clear, from both my previous job and discussions and concerns in academia, that it is a target sector—of course it is—for hostile foreign powers, particularly China.

I have to say that even before I went to work for a university I thought it was a very, very hard thing to leave to universities to police. I am not a legal expert, so I do not know how this is going to work on the ground, but the question is: does this Bill provide a sufficient legislative framework to deter some of the actions? There is plenty in the Bill that says that damaging foreign intelligence activity in this country is unlawful, and that would obviously include the academic sector. Whether that sufficiently captures activity is an interesting question.

I think it does help, but it is probably quite tricky to specify, if you like, academic institutions as distinct from general malevolent activity in whatever the sector may be. It is a question worth asking, though, because the sector that I work in now is clearly of significant interest to hostile intelligence services in all sorts of different ways, including in respect of people and individual areas of research. That is one of the key threats that legislation like this is designed to counter.

[Antony Higginbotham]

Q Given your role in academia now, do you think the sector would welcome the Bill providing more clarity on the legal position?

Professor Ciaran Martin: I do not mean to be flippant, but obviously there could be as many different opinions as there are academics. I think that Government providing clear frameworks, laws and guidance to universities without infringing on academic freedom is where I would want to be. I do not think that it is fair to rely on universities to police this activity. It is extremely difficult in open and collaborative research environments like universities to be able to identify what is malevolent activity. If they do, it is extremely difficult to know where to go, what the relevant laws are, and so forth. The combination of a clear legal framework and clear guidance to universities is something that I personally would welcome. I imagine quite a few people, particularly in sensitive areas like technological research, would absolutely welcome that.

[Sally-Ann Hart]

Q You said earlier, looking at the increasing concerns about China and cyber-espionage, that the Bill will be useful against the threat from China, but do you think that the Bill will make the UK safer from the cyber-espionage threat from China, or will we require enhanced offensive capabilities?

Professor Ciaran Martin: They are not mutually exclusive. The thing about offensive capabilities is that they are sometimes seen as almost symmetrical—cyber is a sort of enclosed boxing ring, where you have offence versus defence—but offensive cyber can be used for anything. Our own British Government’s one declared offensive cyber-operation was against so-called Islamic State, not against the cyber-capabilities of another state.

I need to be reasonably careful about what I say here, but if you think that the US’s offensive cyber-capabilities are largely in the Cyber Command and the UK’s in the National Cyber Force, the GCHQ-MI6-Ministry of Defence partnership, one would expect that the operational security of those capabilities to be pretty good and therefore make quite hard targets for other actors. Similarly, some of China and Russia’s offensive cyber-capabilities against us will have quite good operational security, which will make them hard targets. We cannot rely on offensive cyber-capabilities to stop other people, particularly at the top end of the spectrum, at the elite nation- state level.

There is no magic panacea in the Bill, because no magic panacea is available. Even in the areas we were talking about, such as completely remote activity, one of the things that we saw anecdotally—there is some emerging research to support this—was that when the US in particular had a legal framework, where it can prosecute and indict people in absentia, in China and to some extent Iran, that did have some impact for some time. It did not solve everything, but it did affect the behaviour of some actors—they could not travel to the west, most practically, because they were under indictment by the US and therefore all the US’s allies. It meant that the associates of these people, because digital infrastructure is global, could get arrested.

Some people working with Russian groups have been arrested in eastern European countries with which we can co-operate in law enforcement terms. Strengthening that sort of legal framework gives you something. It is probably more incremental than transformative, but it is still something.

National Security Bill (Third sitting)

Antony Higginbotham Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Stephen McPartland]

Both the right hon. Member for North Durham and the hon. Member for Halifax made a very good point. We will take that away and look at it. If they want to strengthen the Bill, we are happy to work with them to do that.

[Antony Higginbotham (Burnley) (Con)]

Would my hon. Friend agree that there is a difference between providing force protection for a site and providing constabulary and law enforcement duties?

[Stephen McPartland]

My hon. Friend makes a good point. We must also bear in mind that it is not our intention to introduce search-and-seize powers under these police powers. This is part of the tiered approach we referred to earlier, with the police being able to warn people to go away before they fall foul of the law. There is the opportunity to give them that warning before any arrest.

National Security Bill (Fourth sitting)

Antony Higginbotham Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

Again, nothing in clause 11 explicitly allows a constable to seize a device that has been used to photograph, film or record details of the cordoned-off area. That, too, would require scrutiny and consideration, and a proportionate balance would need to be found, but that seems to be an omission that I cannot see addressed elsewhere in the Bill. Could a person be instructed to leave an area, but potentially take footage or photos away with them? Will the Minister confirm whether that is the case? We are minded to consider the matter further. For the avoidance of any doubt, we are comfortable with clause 10 and the designation of a cordon.

[Antony Higginbotham (Burnley) (Con)]

I wish to speak briefly to the clauses. In Lancashire, we are home to BAE Systems Air, in Samlesbury and Warton. That is a significant manufacturing and assembly location for the fourth generation Typhoon aircraft, the fifth generation F-35 and, looking ahead, potentially the sixth generation of the future combat air system. Manufacturing and assembling those aircraft brings a requirement to test them and put them in the air. With any new aircraft, we run the risk of some kind of emergency landing, so the clause is entirely necessary and proportionate to allow the police to put a cordon in place, should that be required. We have to remember the highly sensitive nature of some of the aircraft, recognising in particular that many contain not just UK technology but technology from our friends and allies around the world.

Not that long ago, as we may all remember, one of the F-35s fell off the deck of the Queen Elizabeth carrier as it was meant to be taking off. On the news, we all saw that other allied warships had to go towards the area to ensure that unfriendly or hostile states could not go to find that aircraft on the seabed and try to take some of its technology. The clause seems to do something similar: it will ensure that in the event of an emergency, we have the ability to protect a site so that we can clean it up and investigate it in a controlled way. That control is important, because hostile states are always looking at ways to take advantage of unforeseen circumstances.

Will the Minister confirm that the area where the cordon is put in place will be as tightly defined as possible? We must recognise that in Lancashire, for example, where such events might happen, there is a significant amount of farmland and land used for other things, so we must try to find a balance. It is about proportionality and recognising that although a site is controlled—not just in terms of where it is but recognising that parts might be spread over a significant area—the land might have another use. Will the Minister confirm that the Government expect there to be a balance and that an area will not be so widely defined that it becomes unusable for a significant number of people?

I was pleased to see that there is a 14-day limit for the cordon zone in clause 10, with the potential to expand it to 28 days if needed. That properly tries to balance the different access requirements that the police will have during the clean-up. We all recognise that these will sometimes be complex sites to try to clean up. I very much welcome the clause. For an area such as Lancashire, which has aircraft test flights all the time because of BAE, it will put lots of residents’ minds at ease that if the worst happens, there is a controlled, legislative way to make sure that the site is managed.

[Stephen McPartland]

I am grateful to my hon. Friend for his helpful contribution. The maximum time period is 14 days because we are trying to put in place a limit. The idea is to restrict the areas as tightly as possible to protect the sensitive material without having an impact on other issues. A cordon around the military area will cover a much tighter area. There are already other cordoning factors, which is why the provision is not wider in scope.

The clauses have been drafted because of the experiences in Lincolnshire with the crashed F-15 aircraft in 2015, and the gaps during that period. My understanding is that the pilot lost control of the aircraft, successfully ejected and crashed into farmland adjacent to a village. Once the fire was extinguished, because there were no fatalities Lincolnshire police left it to the relevant military teams to run the area. As result, potentially sensitive debris was left vulnerable to harmful hostile actors over quite a wide range of areas. The purpose of the clauses is to address the direct experience of what happened during that unfortunate aircraft accident.

The hon. Member for Halifax asked a range of questions, including one on civilian light fixed-wing aircraft. The answer is that the provision currently applies only to military aircraft and does apply to foreign aircraft. The powers in the Bill enhance the powers in common law to try to compensate for what happened with that F-15 aircraft. Although the hon. Lady made an incredibly good point about search and seizure powers, as it stands they are not included in the clauses. I will go away and think about that point and ask my officials to look into it in more detail.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Clause 12

Sabotage

Question proposed, That the clause stand part of the Bill.

National Security Bill

Antony Higginbotham Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Chris Bryant]

I, too, support the Bill, but I think part 3 is a complete mess. I do not think it will survive long in the House of Lords—I hope they do a proper job of scrutinising it, because we are certainly not able to do a proper job of scrutiny this afternoon. The Minister is a lovely chap, but if he were on the Back Benches, he would be saying exactly what I am saying now. We know that Ministers do that, because only days ago, the right hon. Member for Camborne and Redruth (George Eustice), the former Secretary of State for Environment, Food and Rural Affairs, told the whole House that the one thing he had been proclaiming to the world—that the UK deals with Australia and New Zealand were wonderful—was not what he really believed.

Of course, we need to tackle political interference by hostile states in the United Kingdom. Some of us have been arguing that point for a very long time, which is one of the reasons why I would like to see the tier 1 visa report published—I see the Minister nodding, so let us hope that he will have produced it by the end of the week. Secondly, I would like us to have the full Russia report, so that we know exactly what the Government knew about interference in British politics.

Some interference is overt, but much of it is covert, as the hon. Member for Milton Keynes North (Ben Everitt) has just referred to. Some of it comes not from embassies, but from all sorts of different people who approach MPs and Ministers and seek to influence the British political system. Some of it is online targeting through bots and trolls, which may be done from St Petersburg, Tehran or wherever, but some of it happens on our own streets. Sometimes, it happens in Parliament through all-party parliamentary groups that receive support, whether secretariat or financial, that comes directly or indirectly from a foreign power. We need to be careful about that. We on the Standards Committee have had direct advice from Parliament’s director of security that this is the Achilles heel of the British political system at the moment.

MPs and peers, of course, do not have the resources to be able to personally check whether the person who is coming through the door has legitimate bona fides; we simply do not have that intelligence resource. That is why one of the amendments I have tabled seeks to establish that, once somebody has registered that they are working for a foreign power, they should declare that when they come to see a Member of Parliament or Government Minister. In Parliament, we do not just register: we declare. That is a simple thing and I am bewildered that the Government are not prepared to accept it.

My new clause 2 would, very simply, make it a new criminal offence for an MP or peer to work for a foreign power that has been specified by the Government to be a danger to the country. Why would anybody vote against such a measure? I have no understanding of why the Government would oppose it. Without my new clause, the Government might decide that, for instance, Iran or Belarus was to be one of the countries on the list and introduce that by regulation, but an MP or Member of the House of Lords would be free to work for that foreign power—all they would have to do is register the fact that they are doing so. I am sorry, but I think that should be a criminal offence. People have talked too easily of treachery and traitors in the political domain over the last few years, but this is an open door to treachery and treason, and I think we should close it.

[Antony Higginbotham (Burnley) (Con)]

It is a pleasure to speak in this debate and to follow the hon. Member for Rhondda (Chris Bryant). I agree with everything that my hon. Friend the Member for Milton Keynes North (Ben Everitt) has said. I am incredibly supportive of the Bill overall, but I do have questions that it would be helpful to get clarity on in this debate, or—what I think is more likely—when the Bill goes to the other place. I say that because the questions and issues we want clarity on are so substantial that we cannot do them justice in the limited time we have today.

For me, those issues revolve around the foreign influence registration scheme and the exemptions to that scheme. I am mindful that the scheme was introduced into the legislation after we had taken evidence in Committee, so we did not get the chance to question some of the experts on what it would look like. I will address my remarks to clause 68 and Government new schedule 2, and to amendments 15 and 16, which stand in the name of my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I am particularly concerned about the legal services exemption. I do not understand why such a broad exemption is required. As my right hon. Friend said, it might be that we are just copying the US legislation, but we need a level of explanation. Removing the legal exemption is not about restricting access to legal services—we still fundamentally believe in natural justice and the rule of law—but we need transparency to prevent exactly the kind of lobbying that we have spoken about. I know that we are unlikely to vote on the amendments today, but we need that kind of transparency.

If we are trying to copy or mirror some of what the US has done, I would question the lack of any kind of exemption for academia, which the right hon. Member for North Durham (Mr Jones) spoke about. I have spoken to Universities UK, which is concerned about the enhanced tier proposed in FIRS and the impact it could have on UK R&D and on our competitiveness. The US registration scheme clearly has an exemption for

“religious, scholastic, academic, or scientific pursuits”

provided that no political activities are included.

I am saying not that there should be an exemption for academic services but that we in this House need to debate properly what exemptions, if any, should apply to the scheme. Should there be an exemption for legal services? Should there be an exemption for academic work? I do not think we have the opportunity to consider that properly today, but I look forward to following the debate in the other place. I ask the Minister to think about some of those exemptions and, if we are to proceed with them, to give a proper explanation to the House about why they might be necessary.

[Stewart Hosie]

The Minister said in relation to the foreign influence registration scheme that other countries have had similar provisions for some years, and of course, that is absolutely true. It is also true that the ISC is very much in favour of introducing a foreign influence registration scheme. We are concerned, however, that the scheme as proposed is more complex than the ones in the US and Australia but that it simultaneously does not go far enough, which is a problem.

Unlike the US and Australian schemes, the proposal is for the one here to be two-tiered. I welcome Government amendments 63 to 94 to restructure clauses 61 and 64, which at least makes some of this a little more comprehensible. However, that still leaves us with a primary tier that will capture all arrangements and activity undertaken on behalf of any foreign power for the purpose of influencing a political event or decision—that is welcome at face value—and a secondary tier designed to capture all other activity beyond political influence, including, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, however, they have to be undertaken on behalf of a country set out in secondary legislation, so the provision does not necessarily apply automatically to every country.

As I said earlier, it is difficult to understand why acting covertly as an intelligence officer outwith the political influencing sphere, for example, applies only where the foreign power is set out in secondary legislation. It is perfectly possible that intelligence operations will be undertaken by countries that are not named in the regulations and so will not require registration. That is self-evidently an omission and a weakness. Requiring all countries to register such activity would be a stronger deterrent.

As the scheme does not yet name a particular country that may be registered under the second tier, it is not clear which countries the Government intend to name when the Bill becomes law. It is also not clear what criteria will be used when deciding which countries to add to the list. Furthermore, as has been pointed out, these things can take some time. I do not know how swiftly the Government might react to add a new country threat, and I am certainly not at all convinced that when that threat is lifted, the Government will act swiftly to remove a country from the list in the secondary tier.

This is a bit of a dog’s dinner. The real risk is that the secondary tier, which could be valuable tool and which I want to see work, might end up not being used. As the Security Minister recognised in Committee, use of the enhanced registration requirement will be “limited”. We do not want this to be limited; we want it to be comprehensive, to be able to capture the majority of the risks. It would surely be far more effective to have one tier which applies to all countries and a broad range of covert activity.