National Security Bill

Debate between Edward Timpson and Jeremy Wright

2nd reading
Monday 6th June 2022 Commons Chamber

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

It is a pleasure to follow my fellow new member of the Intelligence and Security Committee, the hon. Member for Garston and Halewood (Maria Eagle). I agree with what she said and what other members of the Committee have said. As she did, I will also try not to repeat absolutely everything that they said, although I confess that there may be some overlap.

I will speak about two things that are missing from the Bill but should be included, and two things that are in it but do not need to be. Let me begin with the things that are missing. As others have pointed out, the Bill proposes no reform of the Official Secrets Act 1989, as opposed to other Official Secrets Acts. I think that everyone who has spoken accepts that such reform is necessary, and the Government accept that it is essential. As we have heard, that Act deals with unauthorised disclosures of sensitive information and requires, for successful prosecution of offences, that it can be shown that damage has been done by the disclosure. The problem being, as my right hon. Friend the Member for New Forest East (Dr Lewis) set out, that evidence of that damage is often impossible to present without causing more damage. That makes it counterproductive to prosecute such cases at all.

That problem is not solved by the Bill, but frankly it should be. It is not addressed by the new espionage offences in the Bill, which are targeted elsewhere and largely require intent to assist foreign intelligence services or that the action in question is carried out on behalf of a foreign power. Disclosures that are made with different motives, however misguided, will remain to be dealt with under the flawed regime in the 1989 Act. That regime will have to be reformed at some point, and comprehensively. That may well best be done with the creation of broad offences of disclosure and specific public interest defences. It seems to me that the attraction of that approach is twofold. First, as I suggested to the Home Secretary when she generously took my intervention, it is a recognition of current reality. Juries are already applying their own versions of public interest defences to the case they try without the benefit of clearly defined defences in law. Secondly, creating a straightforward offence of disclosure committed where relevant defences do not apply gives the prosecution less to prove, with less risk of further damaging disclosure by the state, and allows Parliament to define public interest defences as widely or as narrowly as we think appropriate. That has to be a better and more rational approach.

We should also consider further the Law Commission’s recommendation of a commissioner who would provide those in government or the intelligence agencies who are contemplating a disclosure of material to the public with another way to raise their concerns. The existence of such a route as an alternative may well make it harder to establish a public interest defence in court. I would argue that the Government should address the deficiencies of the 1989 Act while they have the legislative opportunity to do so in the Bill.

As others have said, another thing missing from the Bill is provision for a foreign influence registration scheme. I recognise and welcome the fact that the Government have said they intend to bring such a scheme forward by amendments to the Bill, but like others I hope they will do so soon, as the disadvantage of making substantial changes in amendments is that we have less time to consider them. It will be important that we consider the details of such a scheme and any unintended consequences of it. For example, the scheme needs to capture significant or substantial interventions on behalf of foreign powers, rather than those that are insignificant or incidental, and we need to consider carefully how a list of countries to which the scheme will apply will be managed and updated in practice. Of course, we cannot do any of that until we see precisely what the Government propose.

I mention in passing that I welcome the clauses on trade secrets, although I suspect, as do others, that the definitions involved will need tightening or clarifying, and I welcome the further clauses on sabotage and foreign influence. That brings me to the things that I think the Bill could do without.

The first, as the hon. Member for Garston and Halewood pointed out in detail, is clause 23, for which at the very least the Government will need to offer further justification. It amends schedule 4 to the Serious Crime Act 2007, which contains offences of assisting or encouraging the commission of a criminal offence abroad. As the hon. Lady said, the Bill will disapply those offences if the actions were necessary for the

“proper exercise of any function”

of the security services or the armed forces. That is a sweeping exclusion from liability for criminal offences. It is not yet clear to me why that is necessary. A defence of acting reasonably is already included in the 2007 Act, and I do not immediately see what the difference is between an argument of acting reasonably and an argument of acting in the proper exercise of someone’s function, which is what clause 23 would add. As the hon. Lady mentioned, we already have the backstop protection of section 7 of the Intelligence Services Act 1994. Ministers will need to explain, as the Bill progresses, why we need further legislative provision on that point.

Finally, I come to the clauses at the end of the Bill that deal with civil damages and legal aid for those with terrorist convictions. I also make it clear that I give my own views on this, not the views of the Intelligence and Security Committee. I have far fewer concerns about the reduction or non-payment of damages in cases where those damages may be used to fund terrorism; in those cases, decisions can be taken by a court, which in essence can already decide the size of award that would be just in all the circumstances. However, I am frankly worried about the Bill’s proposals on legal aid. This House has debated in the past, sometimes fiercely, which types of legal action should be eligible for legal aid and what level of wealth or poverty should be needed to get it, but I do not think we have ever before contemplated determining someone’s eligibility for civil legal aid based on previous criminal behaviour. Prisoners serving sentences, let alone those whose sentences have been served, do not lose all their rights in our society. It is the criminal justice system that exists to reflect our collective disapproval of and sanction for criminal behaviour. The civil justice system is not set up to do so—certainly not in perpetuity thereafter.

Is there any logic in leaving convicted terrorists eligible for criminal legal aid in relation to future allegations against them, as they will rightly remain if this Bill passes, but ineligible for civil legal aid? What that means for a formerly convicted terrorist is that legal aid will be available to them if the question before the court is whether they have again infringed the rights of others in a criminal way, but not if the question is whether others have infringed their rights, perhaps seriously. I am not sure that is right or sensible.

[Edward Timpson (Eddisbury) (Con)]

I congratulate my right hon. and learned Friend on his recent honour, and I share some of his concerns about the widening of the eligibility around civil legal aid in these matters. Does he have any other mechanism by which he thinks this could be addressed in the Bill, to ensure that the Government’s concerns are taken into account?

[Sir Jeremy Wright]

As I say, I can understand the logic of the Government’s position when it comes to the restriction or even non-payment of damages in civil cases where the court believes that those damages may be used in a terrorist cause. That seems a sensible additional provision. It is more difficult where, outside a court—because of course decisions on legal aid are made not by judges, but by officials elsewhere—those judgments are to be made in the context that the Government propose. That seems to me a step too far, and another potential illogicality in the Government’s position is that there does not seem to me to be very much difference on a moral basis between terrorism offences and other serious criminal offences, such as child murder, serial rape or any number of others we might think of, to explain why only offences of terrorism would merit the removal of civil legal aid eligibility.

These measures need considerably more thought and justification. I am also not satisfied that they sit well in a Bill that contains largely necessary and sensible measures that are rightly likely, as we can see in this debate, to command significant cross-party support.