National Security Bill (Second sitting)

Debate between Damian Hinds and Holly Lynch

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Holly Lynch]

Q Sam Armstrong, on China specifically, what types of activities should we be most concerned about here in the UK?

Sam Armstrong: The problem is that it is so broad, in that there are problems even in this building. The security services will tell you privately that—far beyond Christine Lee, who obviously was named—there are agents of the Chinese state here who are known to the security services and in whom they have taken an active interest.

There are huge problems in academia; China has made no secret of its interest in academia. When the Zhenhua database leak happened a couple of years ago—this was a database that China was using to identify potential targets of intelligence activity—it was no surprise that they had targeted think-tanks and academics very carefully.

The third and final area that China is very, very interested in is anything related to technology, and to the areas that it would like to obtain and that it set out in its “Made in China 2025” programme. Those areas are twofold. The first is universities and open research. There are researchers in the UK right now who are, frankly, working with branches of the Chinese navy to come up with devices to track nuclear submarines around the world. That is as dangerous as it comes to our national security, and that work is going on in the open. I am also aware of British companies that are making engines—or casings for engines in this case—that they have admitted are good for nothing other than for engines in tanks. There are grievous concerns about the whole level.

Where do you start first? Well, that is a choice between those that are dangerously undermining our national security and tech, and those that are dangerously undermining our democracy in accessing this building and in terms of the influence and space in which they are influencing our democratic process.

[Damian Hinds (East Hampshire) (Con)]

Q Mr Miller, to come back to information ops, what do we know about scale of state-enacted or state-sponsored information operations specifically?

Carl Miller: One suggestion that I was going to make today was that we have nothing like a comprehensive picture. This is often extremely sporadic project-based research, and it is usually platform-specific, even though we know that, in all likelihood, that is not how the campaigns work—they will work across tonnes of platforms all at once. We will see only certain kinds of campaigns. We are broadly better at seeing broad-based campaigns addressing quite large slices of a population, but again, if we were to put ourselves in the mind of an influence operator, there would be much more targeted campaigns directed towards—if you will—higher-value targets as well.

What we know about scale is that many more countries than those we talk about are doing it. I understand that in the last Indian election, accounts attributable to every single mainstream political party were taken down by Facebook during that campaign. It has emerged as an almost mainstream campaigning tactic.

--- Later in debate ---

[Holly Lynch]

Q Thank you. Can I ask for your thoughts on clause 23, which is on the extension of powers to the security services? The security services feel quite strongly about that and we have heard from them earlier today around encouraging or assisting offences. Did you have any thoughts at the Law Commission about that?

Professor Penney Lewis: Sadly, no. That was not within the scope of our project. It really exceeds the focus of our project on official Government data, so we did not make any recommendations in relation to those kinds of powers and we do not have a view.

[Damian Hinds]

Q I turn to Mr Owen, briefly, to ask about the forthcoming foreign influence registration scheme. From your perspective, what would be your hopes on behalf of the legal profession for that scheme and do you have any concerns?

Rich Owen: We think the solicitors’ profession should be subjected to the scheme in just the same way as any other, although we would like an exception on grounds of legal professional privilege. This is an ancient common-law right going back 400 years or more. It is also regarded as a human right and as a corollary of everyone’s right to receive legal advice and assistance and we feel it plays a crucial role in the proper administration of justice.

To be clear on what we mean by legal professional privilege, it is communication between a client and lawyer whose dominant purpose is to seek legal advice, or a communication between a client and lawyer in anticipation of pending or actual litigation. We therefore think that if there is a foreign influence registration scheme without legal professional privilege, then solicitors acting for foreign states or foreign state-related actors, such as companies controlled by or influenced by foreign states, would have to disclose documents. We think that profoundly compromises the rule of law and the fairness of trials, and will affect the relationship between client and lawyer.

I think it is easy to forget that legal professional privilege is not a privilege for solicitors or lawyers; it is for the client. Of course, clients want to be open with their lawyers when they are seeking advice, and we think this scheme would inhibit that openness. Of course, very often, the reason why they want to be open with their lawyers is that they want to know how to comply with the law, rather than breach it. That is why an exemption is needed in any such scheme.

--- Later in debate ---

[Holly Lynch]

Q Perhaps I can return to my previous discussion with Professor Lewis on the issue around UK interests and Government interests? Putting aside the issue around leaks, I want to think about the “Assisting a foreign intelligence service” elements in clause 3. I will use a hypothetical. If there is a Foreign Secretary who has met with a former KGB officer, and you have that information and want to put it in the public domain—an outrageous example that would never happen—would the Government have grounds to say that, in disclosing that, you have acted against UK interests rather than Government interests? That is despite the fact that there was no material advantage to a foreign intelligence service or detriment to UK interests.

Professor Penney Lewis: I am sorry but I am going to be very boring again. The offence in clause 3 is not the implementation of one of our recommendations. It is one of the offences that was outside the scope of our project. The main espionage offences that are in the existing Official Secrets Act, which implement our recommendations, are in clauses 1 and 4 of the Bill.

Dr Nicholas Hoggard: I will add to that without going outside our own remit, but thinking more broadly about the distinction between UK interests and Government interests. To re-emphasise a point that Penney made earlier, the essence of espionage offences lies in that purpose prejudicial. That is why we see in those offences that have the purpose prejudicial element—where your purpose is prejudicial to the safety or interests of the United Kingdom—that the sentence is so much greater.

The mens rea—the fault element—of those criminal offences lies in that purpose prejudicial. You need not only your purpose but to have known, or ought to have known, that your purpose was prejudicial to the safety or interests of the UK. Also, you must have known, or ought to have known, that you were acting to benefit a foreign power on behalf of a foreign power. Taken together, it is that essence that makes those offences substantively different from the sort of behaviours that might embarrass a Government—or a Government Minister. That sort of thing often falls for consideration within unauthorised disclosure offences, but it is not really the meat of an offence focused on the active interference with the proper safety or interests of a state.

Regularly throughout the project we met with a number of the UK intelligence community in Cobra with the Government security group. The evidence we heard of the nature of hostile state activity does not really have a bearing on the sort of material that sometimes gets disclosed that might embarrass Government Ministers. They are two quite different creatures.

[Damian Hinds]

Q Turning to Law Commission colleagues, you have conducted a very comprehensive review of the four Official Secrets Acts. Let us set aside the Official Secrets Act 1989, which is, as you rightly say, in a different category, because it is about disclosure rather than espionage. Looking at the Acts of 1911, 1920 and 1939, I think it would be useful for the Committee’s deliberation to hear a little about how you went about your review and what you learned along the way—perhaps about if you conferred with your equivalent commissions in other countries and what you heard about the changing nature of the threat that we are trying to deal with and so on.

Professor Penney Lewis: Maybe I will start with the high level and then Nick can come in with a bit more detail. I should preface my answer with a slight caveat. This project started in 2015. Nick joined the Law Commission in February 2019 and I joined in January 2020, so while we were heavily involved in the final report, neither of us were involved in drafting the consultation paper or in the consultation period, which happened in 2017. None the less, we have read the consultation responses, and I can also talk slightly more generally about how we go about doing a consultation.

We were asked to take on this project. The way we work is that we undertake a pre-consultation investigative phase where we talk to stakeholders. That involved Government stakeholders, including Government security stakeholders. We talked to a lot of academics who work in this field. We talked to the media, because obviously they were particularly interested in the 1989 Act, and various organisations that are interested in freedom of expression and open government. We then drafted a consultation paper, which contained provisional proposals for reform. We put those out to public consultation. We had a three-month consultation period, and we had a number of consultation events during that. At the same time, we are continuing to talk to Government security colleagues, as Nick mentioned.

We eventually came to an agreement with Government security colleagues about how they would brief us about the details of the threat facing us without us then being in a position where we would have to say in our report, “Well, we have heard all this secret evidence. We can’t tell you what it is, but trust us that these are the recommendations we think will safeguard the security and interests of the UK”, and without also putting the security and interests of the UK at risk. We agreed a confidential briefing process that involved Nick and me. We then also agreed the disclosure by Government of hypothetical examples that they had drafted to represent the real threats that they told us about confidentially and securely.

Throughout the report, there are hypothetical vignettes that illustrate particular risks. Those are the Government and intelligence services’ creatures, but they were the way in which we were able to reflect the reality of the threat. We then considered the consultation responses and the information we had had from the Government security group. We actually changed a number of things we had said in our consultation paper, so in between the provisional proposals and the recommendations there are a number of significant differences, particularly in relation to the 1989 Act. We then published a report in 2020, which contained our final recommendations for reform.

Dr Nicholas Hoggard: I will go into some specifics of what we learned, which is generously open-ended. What Penney says is correct; there were a number of changes that followed the consultation paper, come the final report. One of the major reasons for that was our engagement more substantively with confidential material and representatives from the UK intelligence community—UKIC—and across a number of Departments. It became increasingly clear to us that the scale of the threat was of an order of magnitude that, even in relatively recent integrated reviews, had not really been reflected. That scale really comes from the cyber-threat. I do not want to repeat what far more sophisticated witnesses said earlier in respect of that, but it also became increasingly clear to us that the way in which very capable state actors were wielding that cyber-threat meant that certain of the original provisions we had made needed to be reconsidered.

One example of that would be the extraterritoriality provisions, both in relation to the espionage offences and the unauthorised disclosure offences. The nature of the way in which cyber-information is held—of course, cyber-information now basically means all information—has changed. The existing offences under the 1911 Act and its ancillary Acts are now almost quaint in the way that they perceive espionage as something that happens on our territory. Of course, that is simply not the case anymore. These extraterritoriality provisions, though relatively unusual for criminal offences, are none the less vital if we are to capture the sort of behaviour that we see now. I think the process we went through in engaging with UKIC was actually vital for the understanding of, and background to, some of the recommendations that we made.

--- Later in debate ---

[Holly Lynch]

Q We will be tabling an amendment that would require the Government to commission an independent review every year on the prevalence of disinformation and the impact that it has on elections. Who would you imagine would be most suited to undertake that report?

Poppy Wood: That is a brilliant idea. It goes back to the point about grip. We are seeing really good work being done by the Home Department and the Department for Digital, Culture, Media and Sport. I think the DCMS counter-disinformation unit is an important tool, but it is very small, as is DCMS, and it is lacking the transparency that such interventions require. It should probably be a body like the Intelligence and Security Committee—some kind of cross-party body, quasi-independent of Government, thinking about the issues, with input from expertise in the relevant services and relevant Departments. I know that the Home Department and DCMS work together closely on this, and I think the Cabinet Office also has a role to play. Instinctively, I feel that something like the ISC would be the best place for it, but I am sure that is to be worked out.

One of the issues with a lot of this stuff is the role of the Executive, and making sure that the body is that far removed from political interference.

[Damian Hinds]

Q Hello. Earlier, you queried why something that happened in 2014 might only have been called out by Facebook in 2018. Isn’t it quite obvious that what happened was 2016 in the middle, and all the brouhaha that followed from the American elections and the congressional inquiry, and all the rest of it? It turned out that when Facebook and others went looking, it was amazing what they could find.

Poppy Wood: Absolutely. If you are suggesting that they respond to PR crises, I would agree with you on that one. Of course, this about brands. We have seen with revelations from Frances Haugen that Facebook is not understaffed but just not focusing them in the right direction on this stuff. There are only handfuls of people focusing on co-ordinated disinformation for the whole world within these big technology companies. It should be dozens, especially if they are hiring 10,000 engineers for the metaverse in Europe. They can put some of them on elections and tracking. They say that they go far, but they could go much further. When there is pressure on them, they respond, and so far that pressure has been PR because there has not been regulation.

National Security Bill (First sitting)

Debate between Damian Hinds and Holly Lynch

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Holly Lynch]

Q I noted your assessment of the introduction of polygraphs. Have you been able to consider their use in any ongoing cases?

Jonathan Hall: What I have been told is that polygraphs have not been used for TPIMs, as far as I am aware, but they have been used for released terrorist offenders and some disclosures have been made. Everyone always thought that the real utility of polygraphs and the clear reason for their use is the disclosures that people make when undergoing the process. I gather that some admissions have been made that have been valuable and have led to a recall. I do not have a huge amount of data, but they seem to have had some success in the context of terrorism offences.

[Damian Hinds (East Hampshire) (Con)]

Q Mr Hall, thank you for being with us this morning. Coming back to STPIMs, you spoke with the shadow Minister a little bit about effectiveness but I want to ask for your thoughts about necessity. From your experience with the counter-terrorism regime, how do these sorts of devices get deployed and why? On transparency, I know there are sometimes concerns that these things may be used in large numbers. Will you say a word about how many TPIMs have typically been in operation at any one time?

Jonathan Hall: I cannot remember the total number of TPIMs. I think it is around 30, but I may be misremembering and that may also include—

Oral Answers to Questions

Debate between Damian Hinds and Holly Lynch

Monday 20th June 2022 Commons Chamber

[Mr Speaker]

I call the shadow Minister.

[Holly Lynch (Halifax) (Lab)]

Canada, one of our Five Eyes partners, recently announced sanctions against Alexander Lebedev as one of 14 people who

“have directly enabled Vladimir Putin’s senseless war in Ukraine and bear responsibility for the pain and suffering of the people of Ukraine.”

I have asked this question of the Government six times now, but I have not had anything resembling an answer: did the Prime Minister meet Alexander Lebedev without officials and without close protection during the Salisbury poisonings in April 2018—yes or no?

[Damian Hinds]

I do not know the detailed contents of either individual’s diary. What I can tell the hon. Lady and the House is that this Government have acted on sanctions against Putin-linked elites—the people who have propped up and supported that regime—without fear or favour. That extends to more than 1,000 individuals, entities and subsidiaries, and we will do more as required.