National Security Bill

Baroness Ludford Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, this has been a most interesting debate, not least due to the contributions from our national security, defence and intelligence professionals—or the securocrats, as the noble Lord, Lord Ricketts, collectively named them. As the noble Baroness, Lady Jones of Moulsecoomb, said, we have heard from people who actually know what they are talking about in this debate—unlike people like me. However, I will plough on none the less.

I thought it rather a pity that nobody from the Conservative Benches, beside the Minister, felt motivated to speak in this debate, while there were five from the Opposition, five from the Liberal Democrats and no fewer than seven from the formidable Cross Benches.

It is clear that UK democracy is under systemic attack from various hostile foreign Governments, including from China and Russia. But, as my noble friend Lord Wallace of Saltaire said, it is absurd to ask us to debate the Bill without publishing the redacted sections of the ISC’s Russia report, which the committee recommended should be released. As the NGO Spotlight on Corruption said, the Bill does not address the hole in the regime for keeping foreign and tainted money out of politics.

The noble Lord, Lord Evans of Weardale, regretted the Government’s rejection of the recommendations from the Committee on Standards in Public Life on political funding. The Electoral Commission has repeated its call for parties and campaigners to be banned from accepting donations from companies that have not made enough money in the UK to fund them and to be required to carry out enhanced due diligence and risk assessments before donations are accepted. Can the Minister tell us why these recommendations are not in the Bill?

The Bill also unfortunately omits the Government’s promised reform of the Official Secrets Act 1989, as noted by the noble Lords, Lord Evans of Weardale and Lord West of Spithead. Perhaps the Minister could clarify whether the Government plan to add that to the Bill during its passage in this House?

The report from the Joint Committee on Human Rights, on which I sit, described this Bill as a

“welcome attempt to modernise espionage offences”,

but expressed many concerns about its human rights impacts, some of which I will mention and have been mentioned by others.

One of the main concerns about the Bill is the Government’s attempts to constrain both scrutiny and accountability, as my noble friend Lord Beith and other noble Lords have said. One of these attempts is the failure to incorporate protection for whistleblowers and journalists, as my noble friend Lady Kramer pointed out; the other is the proposal to grant immunity from prosecution for conduct said to be necessary for the functions of the intelligence agencies or Armed Forces.

A public interest defence for whistleblowers, such as journalists, security personnel or civil servants charged with unauthorised disclosure, is absolutely critical to a rewriting of espionage legislation. We on these Benches are severely disappointed that it has not been included in the Bill, despite the backing of the Law Commission. A statutory defence would act as an internal discipline on better government and better decisions. The run-up to the Iraq war and MI6’s co-operation in acts of torture and extraordinary rendition are examples that might have been prevented with a safeguard.

The NUJ, the BBC and others fear that the Bill poses a significant threat to public interest journalism and press freedom, through the chilling effect it will have on those who expose wrongdoing. Perhaps the Minister can be a bit more encouraging today than he was last Friday to my noble friend Lady Kramer’s Private Member’s Bill on protection for whistleblowers.

Of great concern is Clause 28—surely set to become another notoriously numbered clause from a Tory Government—which would grant immunity from prosecution for encouraging or assisting the commission of wrongdoing abroad by members of the intelligence agencies or the Armed Forces. The noble Lord, Lord West, reported that the ISC believes that Clause 28 is unacceptably broad. The noble Lord, Lord Carlile, backed the changes proposed by my noble friend Lord Marks, and the noble Lord, Lord Tyrie, warned of the experience of rendition, which has never been resolved.

A grant of criminal immunity goes to the heart of respect for justice, human rights and the rule of law. It would be outrageous for Ministers and officials to be granted immunity for actions such as ordering an unlawful targeted killing or providing assistance to torture, interrogation or a disappearance. It may thwart accountability for UK involvement in war-on-terror abuses and undermine the UK’s centuries-old legal prohibition on torture and related abuses. As the noble Baroness, Lady D’Souza, pointed out, it could also destroy the UK’s moral authority in condemning crimes such as the murder of Jamal Khashoggi by Saudi Arabia or international poisonings by the Russian Government.

I listened carefully to the noble Lord, Lord Ricketts, as always, but given the existing immunities under the Serious Crime Act 2007 where a person has acted reasonably, further protections for conduct that is not reasonable are surely invidious. Can the Minister give a credible explanation as to why immunity from criminal prosecution should be granted for unreasonable actions by the intelligence communities and the Armed Forces?

My noble friend Lord Wallace of Saltaire and others, such as the noble Lord, Lord Carlile, have robustly illustrated the huge flaws in the Government’s proposals for a foreign influence registration scheme in Part 3. It threatens to be a bureaucratic monster. Given the Home Office’s struggles with competence in administration, the mind boggles. At the same time, right-wing think tanks escape transparency over their funding from abroad.

The former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, who, as has been mentioned, is unavoidably prevented from being here today, has helpfully shared his thoughts with us in various Twitter threads. I am going to quote from a different one to the one that has already been quoted from. He warned that the requirement on all Governments and bodies from outside the UK to register “political influence operations” is broader than the Australian and US schemes relied on as precedents and “potentially onerous”. He also pointed out a possible loophole, whereby a large company could avoid registration by ensuring that any activities are conducted by a UK subsidiary. The noble Lord concluded:

“Since the registration requirement is not restricted to specified (hostile) govts, or to companies controlled by govts, or to activities relating to national security, I'm struggling to see what it is doing in a national security Bill … Is it not more in the nature of a lobbying requirement (but one applied, oddly, only to foreign entities?) If so, how does it relate to Lobbying Act 2014 &c?”


Perhaps the Minister will tell us.

“And what useful value is anticipated for it? The Govt’s Impact Assessment … is unspecific … The process of scrutiny requires us to probe this thoroughly so as to ensure that we are passing into law a useful defence mechanism rather than a bureaucratic nightmare.”


I have quoted the noble Lord’s Twitter thread at length, because I thoroughly agree with him.

There are many human rights and civil liberties concerns in Part 1 that I do not need to cover, because my noble friend Lord Marks covered them fully. In Part 2, although the measures are called “Prevention and Investigation Measures”, the investigation element appears extremely limited. These measures, which were not included in the Law Commission’s review, risk prejudicing the rights to a fair trial, to liberty and security, and to a private and family life. I am sure they will get the detailed scrutiny they deserve.

The provisions of Part 4 seeking to restrict both the award of damages to those who have been involved in terrorist activity and the grant of legal aid to those with a terrorism-related conviction raise significant human rights and other concerns. They would potentially enable the Government to evade paying damages for UK complicity in torture or other human rights violations. As the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, said:

“It … risks the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”


The question also arises when the Government have a conflict of interest here. However, the availability of damages enabled litigation to be brought by Guantanamo detainees and others who had been subjected to rendition and torture. This uncovered a pattern of unlawful behaviour by the security services and thus served an important constitutional, as well as political, purpose. The proposed restriction on the grant of civil legal aid impedes access to basic rights and legal protections. The current independent reviewer’s view is that it is

“a purely symbolic measure that breaks new ground in the treatment of terrorist offenders and may be counter-productive in matters such as housing, mental health and debt.”

I have a few concluding points. The Bill provides that courts may exclude the public from criminal trials for offences under this Bill. The principle of open justice is fundamental to the proper administration of justice and the right to a fair trial. Clause 36 would be improved if it provided that the public could be excluded only where this was necessary for the administration of justice, having regard to the risk to national security.

The Government need to substantially increase funding for the National Crime Agency—a repeated call from these Benches. It must also strengthen the independence and powers of the Intelligence and Security Committee, which my noble friend Lord Beith and the noble Lord, Lord Tyrie, have called for. The post of reviewer for PIMs should be widened to match more closely the Independent Reviewer of Terrorism Legislation role, to include the full ambit of this Bill.

Lastly, there are several concerns over the Bill relating to the Government’s intention to abolish the Human Rights Act under the Bill of Rights Bill—which I am still hoping might disappear—or even pull out of the European Convention on Human Rights. The Lord Chancellor and Secretary of State for Justice tells us firmly that that is not intended, but this week the Home Secretary, in endorsing a pamphlet by Nick Timothy on asylum, has indirectly called for pulling out of the ECHR. One example of the danger from the Bill of Rights Bill is that the compatibility of national security and official secrets legislation with human rights often relies on the ability of the court to read legislation as compatible with convention rights, so far as it is possible to do so, under Section 3 of the Human Rights Act 1998. The Bill of Rights Bill would abolish that requirement. Can the Minister explain how the Government would then address incompatibilities in national security legislation with human rights?

Although we on these Benches support the Bill overall, it is a curate’s egg, displaying a lack of joined-up thinking. Significant parts of it must be altered both to improve our national security infrastructure and to protect our democratic processes and civic life.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

Moved by

[Baroness Ludford]

4: Clause 1, page 1, line 15, after “article” insert “with a Government security classification of “Secret” or “Top Secret””
Member's explanatory statement
This amendment is recommended by the JCHR and would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).

[Baroness Ludford (LD)]

My Lords, the debate on Amendment 4 flows fairly naturally from the previous debate. The amendment flows from the report by the JCHR, which I am a member of, and is designed to

“confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).”

As the offence relates to the sharing of information, freedom of information—which is of course protected under Article 10 of the European Convention on Human Rights—is engaged, including the potential that it could catch journalism, political expression or whistleblowing activity. This could potentially capture a wide range of information, not least given the uncertainty we have just been discussing as to how the words

“safety or interests of the United Kingdom”

might be applied in a given case.

The requirement that the information be “restricted in any way”, or even that it might be “reasonable to expect”—that also harks back to the preceding debate—that information be restricted in any way, lacks clarity and legal certainty. As your Lordships can see, common themes are emerging. It would of course catch information that was not protected but it was reasonable to expect that it would be. The Government’s Explanatory Notes set out that it would cover non-classified information accessible in a building with restricted access, such as a government building.

I recall the severity of the offence; with a potential punishment of life imprisonment, it might be reasonable in the light of that to expect that it would attach to a clear type of information such as that categorised as “Secret” or “Top Secret”. It seems unreasonable and disproportionate that the offence should attach to information simply categorised as “protected”, or indeed official information that is not restricted at all.

The offence as currently drafted in Clause 1 does not make it sufficiently clear what information is considered to be protected for the purpose of this offence. It creates an unacceptable level of legal uncertainty, raising concerns about compliance with rights to liberty and security, the right to a fair trial and the right to freedom of expression, as protected by Articles 5, 6 and 10 of the ECHR.

As proposed by the JCHR report, in the interests of improving legal certainty and proportionality, this amendment proposes that the clause be amended to say that it applies only to information at a certain level of categorisation and therefore sensitivity, such as “secret” or “top secret”. The report suggests that the details of what could be included could be contained in a non-exhaustive indicative list or specified in a statutory instrument, but this amendment is designed to tighten up the offence so that it does not spread too far or impact too much on freedom of expression, journalism and other lawful activities. I beg to move.

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

My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when

“access to the information, document or other article is restricted in any way”,

as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—

that way being entirely unspecified.

It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.

This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.

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[Lord Murray of Blidworth (Con)]

It is the intention to benefit that foreign power that is in this Bill, and it seems to me that that is a sufficiently clear and adequate definition to afford protection under the proposed section.

[Baroness Ludford (LD)]

My Lords, I was just looking up to see whether the words “intended to benefit a foreign power” were actually in the Bill, but I did not have time. In skimming through, I did not see them.

The Minister’s response has not really reassured me. The lack of definition of “interests of the UK”, with a question mark over what that means and how you could conflate the interests of the country and the interests of the current Government, coupled with the potentially wide definition of “restricted”, suggests, to myself and my noble friends on these Benches at least, a lack of precision and an opportunity that is too wide, especially considering that the penalty that could be faced is life imprisonment. Surely, there is an onus on us to secure a tight definition of offences in this Bill.

The other missing element, which we will come to in further discussions, is the lack of a public interest defence or a whistleblowing defence. What we are facing here is considerable uncertainty about what the real scope of the offence could be. As my noble friend Lord Marks said, the term “restricted in any way” is so undefined, it could cover innocuous but controversial documents, which could be restricted to prevent embarrassment. That is the discussion we keep having on journalism and whistleblowing: we should not open the door to the criminalisation of obtaining or publishing material that could be embarrassing to the ruling party.

I scribbled some notes, but I am afraid I cannot remember which noble Lord made this point. I think it was the noble Lord, Lord Anderson. How are we meant to know what non-classified information is protected? It could apply to anything, however innocent, that was not published. If the Government have a document that they regard as restricted, even though it is not classified, the fact that it has not been published would mean it was restricted, although it may not be damaging except possibly to the reputations of the Government or Ministers.

If I were to get hold of a document saying that a Bill—for the sake of plucking something out of the air, let us say the Northern Ireland Protocol Bill—is designed to assuage some elements of political opinion in the party in power but is highly damaging to the diplomatic and economic interests of the United Kingdom, would that fall within the terms of the offence under Clause 1? In those circumstances, what is the nature of the restriction? What is the harm committed and what is the test of UK interests?

We keep coming back to the considerable grey areas in this whole package around Clause 1 and other clauses. I think we will want to explore this matter further. Otherwise, we are driving a coach and horses through the exercise of freedom of expression and other rights under the European Convention on Human Rights, which for the time being the UK is still a party to.

[Lord Purvis of Tweed (LD)]

I think my noble friend and I are reading the same version of the Bill, but I am not sure the Minister is. There is no reference to benefiting a foreign power with intent, so I hope that at some stage during Committee the Minister will be able to clarify this position.

[Baroness Ludford (LD)]

I thank my noble friend very much for that extremely useful intervention. I think we will have further discussion on this whole lack of precision in definitions in the Bill, especially considering the nature of the potential penalty: life imprisonment. You cannot afford to be vague about definitions in that context. In the meantime, I beg leave to withdraw my amendment.

Amendment 4 withdrawn.

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Moved by

[Baroness Ludford]

8: Clause 2, page 2, line 18, at end insert—
“(ca) the person’s conduct is significantly prejudicial to the safety or interests of the United Kingdom, and”Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.

[Baroness Ludford (LD)]

My Lords, this is a JCHR-recommended amendment under Clause 2, which is about making it an offence to obtain or disclose trade secrets, punishable by up to 14 years’ imprisonment. Again, the JCHR feels that, as the offence is about the sharing of information, freedom of information—protected under ECHR Article 10—is engaged, including the potential that it may catch journalism, political expression or whistleblowing.

It is difficult to justify this as being in the interests of national security because no element in the offence has a link to the interests of national security, or indeed to the safety or interests of the United Kingdom. In their human rights memorandum the Government did not address the compatibility of this offence with ECHR Article 10. In the offence there is no requirement for there to be any detriment to the UK or to the public. As such, this seems to be really an offence of theft affecting a private actor. It does not really belong in a national security Bill.

The examples given in the Explanatory Notes relate to artificial intelligence and energy technology, which suggests that the Government envisage industries with links to critical infrastructure and national security concerns for this offence, rather than mere commercial secrets—important but not relevant in the Bill—relating to industries that pose no risk to national security. But as drafted the offence risks catching all trade secrets, no matter their relevance or lack of relevance to national security. As I say, that is more properly governed by the offence of theft. In his reply, perhaps the Minister can tell me why it is not covered by the offence of theft.

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[Lord Sharpe of Epsom (Con)]

Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, that was another interesting debate. I am very grateful to the noble Lord, Lord Pannick, for defending the honour of the JCHR against a charge of naivety from the noble Lord, Lord Carlile, which I reject. I am sure that the JCHR is capable of understanding the noble Lord’s points.

As the noble Lord, Lord Pannick, said, there is a mischief here. As the noble Lord, Lord Macdonald, said, economic espionage can be against national security—and it can be, but I think that the Minister went further than that. He said that economic prosperity and national security were synonymous. That is a very broad assertion. For instance, the shareholders in Tesla apparently believe, because the share price of Tesla has dropped rather fast, that Elon Musk has neglected the economic prosperity of Tesla by his concentration on Twitter. I do not think that any of us would regard the share price of Tesla as affecting the national security of the United States. I believe that the Minister is wrong in saying that economic prosperity and national security are synonymous, but of course I accept that economic espionage can certainly damage national security.

As my noble friend Lord Marks said, my Amendment 8 intends precisely to put in a test or condition that the theft of a trade secret is prejudicial to the “safety or interests of the United Kingdom”, preferably with that term redefined by amendments from these Benches. Without that condition, as the noble Lord, Lord Pannick, said, Clause 2 does not belong in this Bill. I conclude that I am really not persuaded by the arguments against Amendment 8. When damage to economic prosperity is also harmful to national security, that would be satisfied, if a test of that was added—and I have not heard an argument as to why that test is missing from Clause 2. If the Minister is correct that economic espionage and damage to national security are synonymous, what is the harm of putting in a definition, as the amendment suggests? But I have not yet persuaded the Minister, or indeed some other Members of the House, so for the time being I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

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[Baroness Jones of Moulsecoomb (GP)]

I have watched quite a number of debates in your Lordships’ House and am always struck that the Government invariably reject all the wonderful advice they get from their KCs and former judges. I appreciate that it is much harder when they disagree, but perhaps they ought to look a little more closely at these amendments, read Hansard and think about changing some of the Bill.

These are extremely serious offences. They are meant to protect national security, but currently they do not need intention to be proven. That is incredibly important. A person could unwittingly commit a serious criminal offence without having the foggiest clue that they were doing anything wrong. That is not to suggest that ignorance is a defence, but unintentional consequences to the UK’s interests should not be a serious criminal offence.

One example that is extremely important to me is journalists and whistleblowers exposing government wrongdoing. As the noble Baroness, Lady Ludford, said in the previous group, it is a perfectly legitimate activity that risks being criminalised by this legislation. The intention of journalists and whistleblowers is not to harm national security but to hold power to account. That is partly what your Lordships are doing in this House, so we should take every opportunity to support journalists and whistleblowers who do it too. I am concerned that they might be trapped by this legislation.

Likewise, the offence in Clause 15 risks criminalising people for receiving a benefit from an intelligence service. Those benefits include receiving information. A person could commit a criminal offence simply through a foreign intelligence service telling them some information which they may not want to hear, potentially completely against their will. Overall, these clauses are deeply flawed and need substantial rewriting.

[Baroness Ludford (LD)]

My Lords, I will speak to Amendments 16 and 21. I will get a bit repetitive in the debates on this Bill, since I am speaking to amendments stemming from the JCHR, whose job is to pay attention to human rights.

The problem that Amendment 16 seeks to address is that the conduct that could be criminalised is very wide and could include conduct that engages a number of human rights, most obviously freedom of expression, as the noble Baroness, Lady Jones of Moulsecoomb, said—journalism, other political expression and possibly whistleblowing—but also freedom of association and the right to protest. The Government have not sought to justify any interference with human rights in respect of this new offence in their human rights memorandum. It seems difficult to argue credibly a national security justification for bringing proceedings under this clause when there is no prejudice to the safety or interests of the United Kingdom in the test of the offence.

Conduct outside the UK is not caught unless it is

“prejudicial to the safety or interests of the United Kingdom”

but that test does not apply to conduct within the UK. I hope the Minister can explain why. The JCHR gives the example that the offence would seem to criminalise a French national in the UK who alerts the French intelligence authorities to a terrorist threat in the UK. Let us posit that they do not know how to alert the authorities in the UK. It does not seem very sensible to criminalise such behaviour. Amendment 16 suggests a requirement that the conduct must have the potential to harm UK interests—

[Baroness Manningham-Buller (CB)]

I may have misunderstood the noble Baroness, so perhaps she would be kind enough to clarify. Did she say that the French intelligence service would not know how to contact the British authorities about an incident in the UK? It may be my fault for not hearing—I apologise if it was.

[Baroness Ludford (LD)]

It is possible that I gabbled. I would not suggest that the French intelligence authorities would not know how to contact their UK counterparts; I think we all hope and believe that there is close collaboration between them.

[Baroness Manningham-Buller (CB)]

I assure the noble Baroness that they absolutely would.

[Baroness Ludford (LD)]

Of course; the example in the JCHR report was of a French national in the UK—an ordinary person working in a bar or a bank who alerts the French intelligence authorities to a terrorist threat in the UK. It may or may not be hugely realistic, but that would be criminalised, which does not seem very sensible. The focus of Amendment 16 is to add a test of

“prejudicial to the safety or interests of the United Kingdom”,

always with the caveat that we want that test to get further attention and elaboration.

Amendment 21 concerns the offence of entering a prohibited place, which is punishable by up to 14 years’ imprisonment. Clause 5 is about accessing a prohibited place where

“the person knows, or ought reasonably to know, that their conduct is unauthorised.”

There is no requirement in this offence for any prejudice to the safety or interests of the UK. The JCHR suggests that it is more akin to an offence of criminal trespass—it will have nothing to do with national security, unless there is some sort of test of national security.

All the amendments I have spoken to today are about tightening up definitions so that we do not inadvertently catch what ought not to be criminalised behaviour and avoid any clash with human rights under the HRA and the ECHR.

[Lord Pannick (CB)]

My Lords, I share the concerns expressed by the noble Lord, Lord Marks, and the noble Baroness, Lady Ludford, about the breadth of Clause 3, particularly Clause 3(1), and the absence of any requirement that the defendant intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.

The noble Lord, Lord Marks, gave a practical example relating to Mossad which I will not repeat. I have a concern because of my professional interest as a practising barrister, and I would welcome advice from the Minister as to whether I will be committing a criminal offence under Clause 3(1) if I give legal advice to a foreign intelligence service in carrying out UK-related activities. Clause 3(1) refers to “conduct of any kind”; it is a criminal offence, punishable with 14 years’ imprisonment, for me to materially assist a foreign intelligence service in carrying out UK-related activities. My advice, of course, may be to say to that foreign intelligence service, “You can’t do this in the United Kingdom, it would be unlawful, and you should be aware of that”, but what are the potential defences if I am prosecuted? Under Clause 3(7), it is a defence for me to show that I am acting

“in compliance with a legal obligation under the law of the United Kingdom which is not a legal obligation under private law”.

I am very doubtful that my actions as a practising barrister fall within that provision. It is a defence, however, under Clause 3(7)(b)

“in the case of a person having functions of a public nature under the law of the United Kingdom”.

I do not have that; I am a mere practising barrister. Clause 3(7)(c) relates to some agreement with the United Kingdom; that does not apply.

The only other defence that I could offer when I am prosecuted at the Old Bailey for giving legal advice is the exemptions for legal activity which are in Schedule 14, but they seem to me—and I would be delighted to be corrected if I am wrong—to be exemptions confined to the provisions to which we will come which concern requirements to register foreign activity arrangements and foreign influence arrangements. We are not talking about that; Clause 3 is not concerned with any of that. My question to the Minister is please can I be told whether the legal advice that I give as counsel to a foreign intelligence service falls within the scope of Clause 3(1). I raise this not just because I am very concerned not to end up at the Old Bailey but because that demonstrates that Clause 3(1) is far too wide. It really needs to be redrafted to ensure that it addresses only matters of national security.

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Each offence in the Bill has been carefully drafted with consideration as to the necessary elements. For those offences which already include a requirement for prejudice to the safety or interests of the UK, the proposed amendment would be unnecessary and duplicative. For those offences which do not already include a safety or interest of the UK test, the proposed amendment would mean that we would not capture all the behaviour about which the Government are potentially concerned. For all of those reasons, I invite the proposers to withdraw the amendment.

[Baroness Ludford (LD)]

The Minister has the advantage of having read the Government’s response to the JCHR report. As a mere member of the JCHR, I know that, unfortunately, two months after Report, it did not come in time for this Committee, let alone Second Reading. I look forward to reading it.

I did not follow every detail of what he read, but could the Minister tell me what guards against someone being prosecuted under Clause 5,

“Unauthorised entry etc to a prohibited place”?


The clause raises worries about protestors, journalists, photographers and so on, and does not have a test of breaching national security because the criteria in Clause 4—where there is a test of prejudice to the safety or interests of the UK—are not met. It could look as though you have the lower offence, with the possibility of six months imprisonment, where there is no purpose to assist a foreign power and no prejudice to the interests of the UK, but the catch-all of Clause 5, where anyone who wanders on to Ministry of Defence land can attract a six-month prison sentence, whether or not they have done any espionage or harm to the security of the UK. What is the defence to Clause 5 being some sort of compensation for not being able to charge under Clause 4?

[Lord Murray of Blidworth (Con)]

As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.

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Moved by

[Baroness Ludford]

23: Clause 6, page 6, line 18, leave out paragraph (c)
Member's explanatory statement
This amendment is recommended by the JCHR and would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.

[Baroness Ludford (LD)]

My Lords, the offences and powers in Part 1 of the Bill, which are about entering a prohibited place, are incredibly wide and were detached to significant areas of the British countryside such as Ministry of Defence land covered by public footpaths frequented by tourists, hikers and dog walkers. My amendments in this group aim to guard against innocent members of the public inadvertently committing a criminal offence and to tighten up the conditions for the police to exercise their powers.

It does seem disproportionate to apply the restrictions, and police powers and criminal offences, to land, vehicles and buildings which do not disclose any significant risk to the safety or interests of the UK. Of course, under Clause 8, the Government would give themselves powers to declare additional land, buildings or vehicles to come under the definition of prohibited places. It may not be possible for the public even to know how much of this land and how many vehicles and buildings are Ministry of Defence property and prohibited places. They could risk committing an offence without being aware that they were approaching a Ministry of Defence car, which may have no markings at all, or walking along a coastal path which was Ministry of Defence property. My noble friend Lord Marks was talking in the previous group, or maybe the one before, about how dangerous it is to have wide definitions in criminal law. That is intrinsically bad but imagine if we got a truly authoritarian Government in this country.

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[Lord Murray of Blidworth (Con)]

Yes. My suspicion is that both answers are in the affirmative, but I am afraid I do not know for sure. I will find out from my officials and write to the noble Lord. I thank him for raising that.

[Baroness Ludford (LD)]

My Lords, I am quite disappointed by the Minister’s responses on this. There are considerable dangers in this part of the Bill. The Minister referred to the fact that the offence under Clause 4 is committed only if

“the person knows, or ought reasonably to know,”

that their conduct

“is prejudicial to the safety or interests of the United Kingdom.”

We have been around those houses before. Ought ramblers reasonably to know that they are

“in the vicinity of a prohibited place”?

Again, what does that mean? It is like “adjacent”. I do not think the Minister replied on the meaning of “adjacent”; forgive me if I missed that. It is all very difficult for some normal, uncriminal person to know that they are committing an offence under Clause 4. Clause 5 also says they “ought reasonably to know”. It is all rather reminiscent of being “in the vicinity” or “adjacent”. The Government also have powers to designate more places as prohibited.

The Minister drew our attention to the defence

“to prove that the person had a reasonable excuse for that failure”

under Clause 11 in relation to a cordoned area. As far as I can see—I might have missed it—there is no such reasonable excuse defence in relation to the offences under Clauses 4 and 5 on entering or unauthorised entry to a prohibited place. If I am wrong, no doubt the Minister will be able to write to correct me.

This all seems quite reminiscent of the Covid restrictions. In the last couple of days, the human rights barrister Adam Wagner did a review of Matt Hancock’s diaries, or so-called diaries. Presumably, as he is an ex-Cabinet Minister, this publication would have been vetted by the Cabinet Office. This is the Minister who would have signed off all the SIs on Covid restrictions—200, or however many there were. The publication by Mr Hancock says that these were all SIs under the Coronavirus Act, which is not true; they were under the public health Act 1984, if memory serves. It went through the Cabinet Office with no one picking up that the reference was to the wrong law. This is reminiscent of the chaos among the police in applying the restrictions, their failure to distinguish between guidance and law, and the general outrage among the public at being told they could not do things that actually were not illegal. This did not help the reputation of and trust in the police.

I foresee similar echoes from the provisions of this Bill, of an outraged Middle England—or middle UK—where people find themselves adjacent to or in the vicinity of a prohibited place on Ministry of Defence land having had no reason to know about it. The Minister said he would try to consider putting up notices, but I do not think there has been any guarantee. So someone might not know that they were in the vicinity of a prohibited place that is defence land, committing an offence with potentially draconian penalties. This is inadequate as law. The Minister did say that there would be guidance, but there was guidance for the Covid regulations and that did not always solve the problems.

So, while I hear what the Minister says, I will want to return to some of the issues in this part of the Bill. The proposed law is sloppy. It could find innocent people either criminalised or dissuaded from taking their normal walk because they are not sure whether they are allowed in an area, and there could be a general chilling effect on people’s leisure activities. That said, and with the intention of having another look at all of this on Report, I beg leave to withdraw my amendment.

Amendment 23 withdrawn.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.

In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.

Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.

Clause 25(1) states:

“A constable may arrest without a warrant”.

Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?

In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?

Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in

“land or a building in the United Kingdom which is owned … by a police force.”

Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?

Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?

Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?

I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

[Lord Hacking (Lab)]

My sympathy lies with you.

[Baroness Ludford (LD)]

And mine with you. I look forward to the debate on Clause 28.

The Government’s response, which we finally received, does not seem very strong. It says:

“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”


I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.

On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where

“no review officer is readily available”

or

“it is not practicable for any other reason to carry out the review.”

That seems to us illegitimately broad.

In their response, the Government give an example, saying

“these provisions ensure a wide range of instances”—

that is certainly true—

“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,

which I would describe as wide,

“is preferable.”

The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—

[Baroness Ludford (LD)]

I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to

“proceeds from crime from state threats activity”.

I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if

“the detained person has benefited from their criminal conduct”

and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

Moved by

[Baroness Ludford]

76: Schedule 7, page 137, line 14, at end insert—
“(2A) The requirement under paragraph 1(2)(c) must not exceed a 14-hour period.”Member's explanatory statement
This amendment is based on a recommendation of the JCHR. It is designed to ensure that rights under Article 5 of the ECHR are not infringed, and therefore it sets a 14-hour limit on the time that the subject of Prevention and Investigation Measures could be required to remain in their residence.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, in moving Amendment 76, I will also cover the other three amendments in my name—I am afraid I dominate this group 1, which is all concerning proposals made by the report from the Joint Committee on Human Rights.

Part 2 of the Bill introduces state threats “prevention and investigation measures”. I am not sure whether we are calling them STPIMs or just PIMs. Anyway, these are a set of restrictive measures that the Secretary of State could place on individuals who they reasonably believe are involved in foreign-power threat activity. Failure to comply with the measures imposed would be a criminal offence. Of course, these measures largely mirror the legislative scheme of the TPIMs—terrorism prevention and investigation measures—that can be imposed on those suspected of involvement in terrorist-related activity. There is an awful lot of experience, particularly on the Benches opposite, on that subject.

The intention behind the measures is that they should be applied to people believed to pose a significant threat but who could not be prosecuted. In fact, according to the Explanatory Notes, PIMs would similarly represent

“a measure of last resort”

applicable to those cases that, despite the wide range of new offences introduced by the Bill,

“cannot be prosecuted or otherwise disrupted.”

Clause 37 grants the Secretary of State the power to impose PIMs, while Schedule 7 sets out a wide range of requirements and restrictions that can be included, such as

“a requirement to reside at a specified residence”,

overnight curfews, exclusion from certain places or buildings, restrictions on travel, work and study, contact with others, use of phones and computers, et cetera. There is also daily reporting to a police station and GPS monitoring. So far so familiar, really, and there is a clear parallelism with TPIMs.

Amendment 76 specifically concerns the worries about the right to liberty guaranteed by Article 5 of the European Convention on Human Rights. It is the same, familiar range of concerns regarding ECHR and HRA rights—especially Articles 5, 6 and 8. Amendment 76 focuses particularly on Article 5, where concerns arise from the imposition of curfew measures. It has been established over many years of litigation arising from TPIMs—and, before that, control orders—that requiring a person to remain in their home for more than 16 hours per day is, rather unsurprisingly, likely to amount to a deprivation of liberty under Article 5. Curfews that last 16 hours or less could still engage Article 5 when coupled with other restrictive measures, particularly those causing social isolation such as separation from family.

The ECHR memorandum accompanying the Bill recognises the potential for Article 5 to be violated by a PIM, but it states that

“there are protections in place”

to prevent this, specifically the obligation on the

“Secretary of State … to act compatibly with the Convention rights”

and the same obligation applying to the courts. It is asserted that the judicial review process built into the Bill should serve as a protection against unjustified deprivations of liberty. Such protections, however, depend on the Human Rights Act which, under the Bill of Rights Bill as introduced, will be repealed and replaced. Many of us fear that the Bill of Rights Bill threatens to weaken the courts’ ability to hold public authorities to that Article 5 obligation.

The Joint Committee on Human Rights concluded that the simplest way of introducing

“A more effective protection against interference with Article 5 rights would be to include within the National Security Bill a strict limit on the number of hours for which a subject of Prevention and Investigation Measures could be required to remain in their residence”.


This amendment reflects the JCHR report’s suggestion of a maximum of 14 hours per day. The Government may have other ideas, which will be interesting to hear.

I will now speak to Amendment 77. The conditions in Clause 38, which focus on “foreign power threat activity” are defined broadly and include some behaviour which may not currently even justify arrest. In these circumstances, none the less, this Bill proposes the imposition of potentially long-lasting highly restrictive measures on an individual. While the measures are called “prevention and investigation measures”, the investigation element appears extremely limited. Clause 44 would require the Secretary of State to

“consult the chief officer of the appropriate police force”

regarding whether a prosecution is possible before imposing a PIM and for the police to “keep under review” the investigation of the individual’s conduct with a view to their prosecution for the duration of the PIM—which can be renewed for up to five years. But the Bill would place no obligation on the Secretary of State to take, or refrain from, any particular action after consulting with the police, so it appears to have no real consequences. It also does not specify any duty on the police to take action beyond keeping investigation under review; it does not actually require investigation.

Amendment 77 proposes that, given the intention for these measures to be used in cases that cannot be prosecuted or otherwise disrupted, it seems reasonable to put in a requirement that, having consulted with the police, the Secretary of State gets confirmation from them that prosecution is not realistic or feasible before a PIM is imposed. That appears to be consistent with the policy justification of this clause.

The conclusion is that the JCHR recommends that the Bill is amended to include such a provision. My other two amendments in this group are consequential, so I will close here. I am very interested to hear other views. I beg to move.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.

On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must

“secure that the investigation of the individual’s conduct … is kept under review”.

It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.

--- Later in debate ---

Moved by

[Baroness Ludford]

80: Clause 54, page 38, line 22, after second “of” insert “Part 1 and”
Member’s explanatory statement
This amendment is recommended by the JCHR and would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.

[Baroness Ludford (LD)]

My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.

The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.

As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

We invite the proposers of the amendments not to press them; further information will follow.

[Baroness Ludford (LD)]

Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.

I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.

In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.

Amendment 80 withdrawn.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

Debate on whether Clause 87 should stand part of the Bill.

[Baroness Ludford (LD)]

I will speak to the question of whether Clause 87 should stand part of the Bill, which is in my name. I am grateful to the noble Lord, Lord Pannick. I will also speak to the question of whether Clause 88 should stand part.

Many aspects of this Bill are problematic. This Committee on Monday debated one of the biggest aspects—the proposed foreign influence registration scheme—and has just been debating another on damages. I apologise for my unavoidable absence, which meant that I did not speak to the amendment in my name, but it was very adequately covered by my noble friend Lord Marks and subsumed in a very interesting global debate. I venture to suggest that no aspect of this Bill is so lacking in validity or is so stupidly—if I may say so and that word is not unparliamentary—counter- productive as the proposal to deny for 30 years civil legal aid to anyone convicted of a terrorist offence.

The first problem is that in their ECHR memorandum to the Bill, the Government claim that Article 7 of the ECHR, which bans retrospective penalties, is not breached because this is an administrative measure only. However, their argument involves an acknowledgement that the aim of this denial of civil legal aid is symbolic. They say:

“the aim of the measure is symbolic, in that the purpose of the restriction is to reflect the significance of the bonds with the State and society that are broken by the commission of terrorist offences.”

Should we be making law on such a basis? How can it be legal to make law which is to achieve a symbolic purpose? Surely a clash with the ECHR would beckon. Perhaps that is one that this current Government, unfortunately, might welcome.

The second problem is the rule of law challenge regarding access to justice. The report of the Joint Committee on Human rights cites the evidence from the Law Society:

“It is fundamental to the rule of law that our justice system rests on the clear principle that every judgment relies on the merits of the case brought before the court. We should not automatically be excluding people from legal advice and support because of unrelated convictions. To do so will diminish access to justice in our country and could affect the objectivity of our legal system.”


I suggest that that is a very important point. It is not as if the cohort to be affected is simply those convicted of serious terrorist offences, because it is defined broadly, catching some more minor and historic offending—indeed, some which might not be considered terrorist activity at all. It could include the offence of failing to disclose a suspicion that another person is fundraising or money laundering for terrorist purposes. As it covers any conviction, it could also affect individuals given less severe sentences, such as a referral order. It could also bar from accessing civil legal aid individuals convicted of an offence which has since been abolished. The Law Society highlighted to the JCHR that it could affect

“a person fleeing from domestic abuse who is prevented from accessing an injunction against their abuser, and protection for their human rights, because of a twenty-year old conviction for a terrorist offence.”

The ramifications are very wide. The former Attorney-General Sir Jeremy Wright said during the Second Reading debate in the other place:

“I do not think we have ever before contemplated determining someone’s eligibility for civil legal aid based on previous criminal behaviour.”—[Official Report, Commons, 6/6/22; col. 603.]

That was a previous Attorney-General. This sets out a serious question about the basis for these proposed provisions denying civil legal aid.

The third point is about the practical implications. These were raised by the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC. He said:

“Even symbolic restrictions may have practical consequences. No released terrorist offender is going to reoffend merely because their access to civil legal aid is restricted. But legal advice and assistance is relevant to securing help on housing, debt and mental health. A homeless terrorist offender, or one whose mental health needs are unaddressed, will present a higher risk to the public. There is a risk of unintended consequences.”


Do we want to seek to reintegrate people who have committed offences in the past? If we do, denying civil legal aid perhaps 20 or 30 years later for something like housing or debt problems does not seem the right way of going about it. As Jonathan Hall said, it is highly counterproductive. He said:

“A terrorist offender who goes back into society and lives quietly presents a rosier prospect than one who needs perpetual monitoring.”


Those are the practical consequences. This may be some great symbolic declaration, and I am afraid we are a bit too familiar with that sort of symbolism from this Government. In practice, it is counterproductive.

My fourth and last point is that it is counterproductive as it will create more bureaucracy. This was also highlighted by the Law Society. It is going to create large volumes of bureaucracy for the Legal Aid Agency. As far as I know, the Legal Aid Agency is under the remit of the Ministry of Justice. There are certainly other Ministry of Justice agencies affected too. I think before recess we discussed the probate service. I unfortunately have had experience of that myself in the last few years when I was bereaved. There are other agencies under the Ministry of Justice which are seriously struggling to deliver a decent service to the public. Is it a good idea in those circumstances to create more bureaucracy for another agency in the justice family?

It creates more bureaucracy because the Legal Aid Agency will have to confirm whether every applicant for civil legal aid has a previous conviction for terrorism and do lots of digging to find out information about this person. As the JCHR says,

“This may significantly increase the cost to the public purse, while it is unclear how this measure would contribute to public security and safety … Clauses 62-63 do contemplate a lesser form of legal aid, Exceptional Case Funding”,


but this is, in the view of the Law Society

“a very bureaucratic process”

which

“puts in place a significant obstacle to access to justice given the extra work and uncertainty”.

It is not much of a safeguard or a backstop.

All in all, I hope that I have persuaded the Committee that, on four grounds, the denial of civil legal aid to people because they have been convicted of a terrorist offence—I am not saying that they are good people—is against the rule of law principles and has practical consequences which are counterproductive, bureaucratic, costly, and so on. We are driven to the conclusion that their whole purpose, as with so much of what the Government seem to be doing these days, is to send some kind of symbolic message, but it does not withstand examination as having any merit at all.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I shall certainly reflect on the practical side. This would be a decision for the director of casework at the Legal Aid Agency. The noble Baroness, Lady Ludford, rightly raised the question of the practical “bureaucracy” associated with the proposal, and we are working with the Legal Aid Agency to see how it can be most conveniently implemented, with minimum disruption.

[Baroness Ludford (LD)]

My Lords, I shall be brief, because I know that noble Lords are waiting for the Statement. I thank the Minister for his reply. His first point was that the Government wanted to address the unique situation where, they contend, the people envisaged —those who have committed terrorist offences—have threatened to undermine our democracy. Other noble Lords who have contributed to the debate and who I very much thank, including the noble Lords, Lord Pannick and Lord Anderson, talked about other extremely serious offences such as murder, rape and, I think, manslaughter. Why just terrorism? Personally, I think that the offence of rape undermines the principle of our modern society, which should exist, about equality between men and women, the dignity of women and our rejection of abuse of women. Apart from very serious terrorist offences, I might judge a rapist on a more serious basis than someone who gets a fine for graffiti, for example, presumably in support of some proscribed organisation. Therefore, I do not think that the argument is very sound, if I may say so.

National Security Bill

Baroness Ludford Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to amendments in this group. I declare my interest as a practising barrister, sometimes representing clients on legal aid. The harmony that has broken out in this afternoon’s debates does not apply to this group, although I do thank the Minister, the noble and learned Lord, Lord Bellamy, for engaging with me and others on this subject and for tabling an amendment that mitigates, to a limited extent, the mischief of Clause 89.

I will first cite some history. At the legal aid Bill’s Second Reading on 15 December 1948, the Attorney-General, Sir Hartley Shawcross, told the House of Commons that civil legal aid was so important because it would

“open the doors of His Majesty’s courts and make British justice more readily accessible to the great mass of the population who hitherto have too frequently, I am afraid, had to regard these elementary rights—as they ought to be—as luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/1948; col. 1223.]

Sadly, the scope of legal aid has been much reduced in recent years by Labour Governments, Conservative Governments and by the coalition Government. But, where civil legal aid is still available, it remains a vital legal protection for individuals and their families. It is a noble scheme that goes some way, although not far enough, towards ensuring that a lack of financial resources is not a bar to access to justice. So it is objectionable in principle for the Bill to propose to remove eligibility, even subject to exceptions, for a category of people who are defined simply by the nature of the criminal offence of which they have been convicted.

Clause 89 is simply indefensible for three main reasons. First, it will apply irrespective of the seriousness of the criminal offence of terrorism of which the individual is convicted, so long as that offence is capable of being punished by up to two years’ imprisonment. The noble Lord, Lord Anderson of Ipswich, who cannot be in his place, pointed out in Committee that terrorism offences include such matters as

“inviting … support for a proscribed organisation”

and

“‘failure to disclose professional belief or suspicion about’ the commission of terrorist offences by others”.—[Official Report, 18/1/23; col. 1868.]

Now such criminal conduct is wrongful, but it may, and often does, lead to a short custodial sentence or even a community sentence. But, under Clause 89, any such conviction excludes a person from civil legal aid, subject to narrow exceptions, for 30 years, whatever sentence the court thinks is appropriate in the circumstances of the individual case. This is indefensible, and it is particularly so when, as the noble Lord, Lord Anderson of Ipswich, also pointed out, the recidivism rates for terrorist offenders are very low indeed: he gave the figure of 3%.

The second reason that Clause 89 is simply indefensible is that there is no exclusion from civil legal aid for those convicted of murder and rape, people who may receive life sentences and who normally receive very serious sentences for their offence. To single out terrorist offences, and to do so irrespective of the gravity of the individual offence, suggests to me, and I may not be the only one in this House, that the Government are more interested in political gestures than they are in pursuing any coherent principle.

The third reason that Clause 89 is simply indefensible is the one given by the noble Lord, Lord Marks: it will exclude persons from civil legal aid in cases which have no connection to the offence of terrorism of which they were convicted. A woman may be convicted of giving support to a proscribed organisation and receive a short custodial sentence or a community sentence, but 10 or 20 years later, she may be evicted, or face eviction, from her flat and face homelessness. The idea that she should be denied civil legal aid—and denied eligibility for civil legal aid—because of the terrorist conviction frustrates the very purpose of civil legal aid in a civilised society. Let us suppose the terrorist offender is beaten up in prison by prison officers—it does happen. Should he be excluded from eligibility for civil legal aid if he otherwise satisfies the relevant criteria? The idea that this proposal is brought forward by a Ministry of Justice defies credulity.

The only question in my mind is how best to remove or dilute the stain of Clause 89, and the Marshalled List contains a number of possible amendments, to some of which I have added my name: that Clause 89 should not stand part of the Bill, that it should be confined to those who are sentenced to seven years’ imprisonment or more, or that it should be confined to legal aid for a matter connected to the terrorism offence, which is the amendment preferred by the noble Lord, Lord Marks.

I am very sorry indeed that the Labour Front Bench is unwilling—as I understand it; I would welcome correction from the noble Lord, Lord Ponsonby—to support any of these amendments, and has itself tabled what can only be described as a weak amendment, Amendment 188A, which would require a review within 60 days of Clause 89 coming into force. The noble Lord, Lord Ponsonby spoke eloquently about Clause 89 in Committee; he is far too sensible and fair-minded to think personally that Clause 89 makes any sense. I assume, although I welcome correction, that the Opposition in the other place fear that they will be accused of being soft on terrorism if they support any of the substantive amendments. I think we all know what Sir Hartley Shawcross or the great Labour Home Secretary, Roy Jenkins, would have said about that.

If, as I hope, the noble Lord, Lord Marks decides to test the opinion of the House on one of these amendments, he will certainly have my support.

[Baroness Ludford (LD)]

My Lords, I can speak briefly because my noble friend Lord Marks and the noble Lord, Lord Pannick, have spoken forcefully on this matter. The amendments to remove Clauses 89 and 90 are in my name and signed by the noble Lord, Lord Pannick. I spoke at some length on this in Committee, and I believe it is a matter of principle—a very flawed principle, as the noble Lord, Lord Pannick, said—to bar anybody with a terrorism offence, however minor, from being granted civil legal aid.

The noble and learned Lord, Lord Bellamy, admitted in Committee that this proposal was “symbolic”— I think he said it more than once. In other words, it is gesture politics. The hope must be, as the noble Lord, Lord Pannick, just said, to paint those of us opposing it as somehow soft on terrorism, but I put it to the Government that they could be regarded as soft on murder, rape and sexual offences. They are apparently content that major offenders against women, of the likes of Wayne Couzens and David Carrick, variously guilty of abduction, rape and murder, could one day be eligible for civil legal aid, but not someone who is a minor offender under terrorism laws. If they try to throw at us in the Daily Mail that we are soft on terrorists, the Government ought to be prepared for a counter charge that they are soft on murderers and rapists. Given the huge public concern in recent weeks, months and years about the volume and the type of offences against women, I do not think that the Government are going to come out of this well.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, these clauses restrict access to civil legal aid for convicted terrorists, although there are exemptions to this, such as when the convicted terrorist is under 18. I welcome government Amendments 184 and 186, where the Minister has made a further concession regarding people who have been victims of domestic violence and domestic abuse.

While we support the principle that terrorists should not receive legal aid, we are concerned that application of these clauses could permanently impact those with minor offences such as vandalism. We have therefore tabled Amendment 188A in my name to create a practical mechanism to address these concerns. This would establish a statutory review of the impact on those who receive non-custodial sentences. We will not support Amendment 180 in the name of the noble Lord, Lord Marks, which would allow terrorists to receive legal aid if their applications relate to a non-terrorism offence. We believe that these most serious offenders who commit attacks on the UK should not receive support, regardless of the nature of their later civil proceedings.

There is a point of principle here, which is that terrorism is a uniquely targeted offence against the British state, and we think that that needs to be recognised. However, there are the points of the low-level offences, which I brought to the attention of the Committee, and there is also the point that was acknowledged by the Minister about people who are victims of domestic abuse. So, there are principles here, but there is a clash of principles.

--- Later in debate ---

[Baroness Ludford (LD)]

Will the noble Lord explain on behalf of the Official Opposition why, if terrorism is a unique crime against the state, he does not have a similar view of unique crimes against the integrity of the person, the integrity of women, that we have seen in the appalling crimes that have, thankfully and at last, led to convictions of the likes of Wayne Couzens and David Carrick? Those are offences against the integrity of the person, the integrity of women and the integrity of society. Why would they not be considered on a similar level to some terrorist offences, without giving any quarter to terrorism whatever, but on the lesser scale of terrorism? I think his “uniqueness” argument really demands justification.