National Security Bill

Holly Lynch Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to follow the detailed and powerful contribution by the hon. Member for Wycombe (Mr Baker). It is an honour to close this debate for the Opposition. While all debates in this Chamber carry weight, no legislation can be more serious than that which concerns our national security.

Before moving to the substance of the debate, which has been exceptionally well informed and well managed, I want to pay tribute to our security services and police forces who worked so hard to make sure that the platinum jubilee could be celebrated safely, as it should be, this weekend. I have never been prouder to be part of our great nation than when seeing and taking part in the celebrations this weekend. From street parties across our communities, the lighting of beacons and the celebration of the emergency services at the magnificent Piece Hall in my constituency to the world-class performances and execution of the Platinum Party at the Palace and the royal pageant, it has been a people-powered celebration to mark 70 years of Her Majesty the Queen’s loyal service to the country. She has provided a masterclass to all of us in public service.

Yet behind those celebrations was a policing and security operation like no other in recent history. I was grateful to the Metropolitan Police’s gold commander, Deputy Assistant Commissioner Barbara Gray, for briefing on those efforts last week. I pay tribute to those on duty this weekend on the frontline of keeping us all safe. The police and security services work around the clock, ever-vigilant to the constantly evolving threats that we face as a country, whether in times of national celebration or on any other day of the week. We are truly grateful for their service, their bravery and their sacrifice.

As outlined by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary, in her opening contribution, we welcome the National Security Bill, which builds on the recommendations of the Intelligence and Security Committee and the Law Commission and delivers long-overdue updates to our current legislation. As threats and technologies have evolved and been exposed, so too have the gaps in the legislative defences necessary to keep our country safe from hostile state threats.

As my right hon. Friend outlined, however, the Bill still poses a series of serious questions as we seek to work through the detail. There are measures that we expected to form part of the Bill that are missing, as well as genuine questions about the oversight of the powers within it and the appropriate scrutiny of how and when those powers are used.

The measures proposed in the Bill have been a long time coming; the Chair of the Intelligence and Security Committee outlined just how long some of the measures in the Bill have been called for. The Home Secretary raised the appalling 2018 Salisbury poisonings and the need to update our laws to provide the legislative cover necessary in the face of the contemporary threats we face as a nation. While Russia’s illegal and despicable invasion of Ukraine has certainly focused minds, it would be wrong to say that the provisions in the Official Secrets Act became outdated overnight.

In his annual threat update, MI5’s director general Ken McCallum stated:

“The Official Secrets Act 1911…remains a cornerstone of our espionage legislation…in 1910, just six months into MI5’s existence, founding Director General Vernon Kell included in his first progress report a plea for strengthening the Official Secrets Act, as it was proving hard to prosecute espionage cases. Kell’s push led to the Official Secrets Act 1911…it is now—obviously—hugely out of date.”

Our security services need to have confidence in the legislation that underpins their vital work. They need a justice system that is ready and able to respond to those they identify and expose as acting on behalf of hostile states and to the tradecraft of their intelligence operatives.

I assure the Government of our commitment to engage constructively as we work to fortify the Bill, so it successfully ensures that the UK’s law enforcement and intelligence community has the modern tools, powers and protections that it needs to keep us all safe. In turn, however, we expect to be heard in the same spirit when we raise genuine concerns and issues. I suspect that it will not come as a surprise to the Minister when I say that perhaps the most glaring omission from the Bill is the absence of a foreign agents register. As hon. Members have already said, particularly those who have served on the Intelligence and Security Committee, not least my right hon. Friend the Member for North Durham (Mr Jones), it was promised by the Government in 2019 and repeated formally in the 2021 integrated review. Britain is lagging behind its allies and Five Eyes partners Canada, America and Australia, who all have variations of such schemes in place.

As recent events have unfortunately shown, a register is urgently required to ensure that individuals in this House, and leaders and decision makers across the country, know whether the lobbyists, PR firms or other professionals they encounter are acting in good faith to further genuine business interests or causes, or are instead acting on behalf of hostile states. I was particularly interested in the contribution of the hon. Member for Isle of Wight (Bob Seely) and some of his detailed proposals on that. As the notion of elite capture increasingly becomes a form of creeping corruption that all MPs and decision makers have a responsibility to steel themselves against, the legislation before us fails to deliver the transparency and clarity that a register would bring in assisting lawmakers and others in high office to protect themselves from becoming soft targets for those acting on behalf of foreign states.

I am grateful to the Minister and his officials for their time last week. Further to the words of the Home Secretary in her opening remarks, it is our understanding that the Government intend to introduce a foreign agents register in the form of a Government amendment to the Bill later in its passage through Parliament. I stress, as others have, just how vital it is that both Houses have the opportunity to scrutinise any such scheme. I therefore urge the Government to grant both the House and such a substantial addition to the Bill the respect they deserve and to bring forward plans for the foreign agents register before the Commons Committee stage, so that we can all do our due diligence in considering the proposals effectively before we get into the somewhat relentless intensity of line-by-line scrutiny of the rest of the Bill. Almost everyone who contributed to the debate made that point.

In addition to the absence of a foreign agents register and reform of the 1989 Act, we are surprised that the Bill does not go further to tackle head-on the online misinformation and disinformation that is being peddled by countries that seek to undermine us—a point also made by the hon. Member for Folkestone and Hythe (Damian Collins). It has been well documented that for many years now the Russian state has regularly pushed disinformation on social media, as part of its strategy to sow division and stoke tensions in the west. Information on one so-called Russian troll factory was reported in 2017, when journalists identified 118 accounts or groups on Facebook, Instagram and Twitter that were linked to the troll factory. The so-called trolls had contacted around 100 real US-based activists to offer financial help to pay for transport or printing costs to support their protests and action relating primarily to, as we have heard, race relations, Texan independence and gun rights.

Rather than support one side of a particular issue or debate, the troll factories typically encourage and offer financial assistance to groups from opposite ends of the political spectrum to amplify divisions. Disinformation has also been a facet of the Russian invasion of Ukraine. A special cybersecurity report from Microsoft found that in the run-up to the invasion Russian actors used disinformation on social media in an attempt to destabilise the Ukrainian Government and Ukrainian society. Just this weekend, The Times reported on how Kremlin trolls are stirring up anti-Ukrainian refugee sentiment online in Bulgaria, and they are no doubt attempting to do the same elsewhere.

Although there are clauses in the Bill that could offer some relevant new powers in very general terms, we are surprised that neither the Online Safety Bill nor this Bill present measures that are aimed at exposing the aggressive online activity I have described, addressing its scale, disrupting it and stopping it at source. We hope that, during the Bill’s passage, we can work together to enhance such measures. Given the evidence base and societal impact, a failure to do so would be a regrettable and massive missed opportunity.

Because of the Bill’s nature, it inherently gives new statutory powers to the police, security services and the Home Secretary. Labour recognises the requirement for the new powers in principle; nevertheless, it is important that within a mechanism that grants such powers there are appropriate safeguards and accountability. We firmly believe that the legislation would benefit from much more clarity on the face of the Bill about the appropriate scrutiny and oversight from either a relevant commissioner or independent reviewer.

As the Minister knows, we have engaged with him and his officials on our serious concerns about the drafting of clause 23, and I am grateful for the note he shared today with me and my right hon. Friend the shadow Home Secretary in response to those concerns. My hon. Friend the Member for Garston and Halewood (Maria Eagle) gave a typically detailed rebuttal of why clause 23, as currently drafted, is necessary, given the existing legislation. I hope the Minister will respond to her and to so many others when he sums up.

In addition to the introduction of a foreign agents register, we believe more needs to be done to protect the Government and their officials from becoming the potential targets of hostile states actors—much in the same spirit as the issues raised by my hon. Friend the Member for Rhondda (Chris Bryant). I am afraid there are outstanding questions about the conduct of the Prime Minister—if he still is the Prime Minister; he certainly was when I got to my feet—when he served as the Foreign Secretary, and I have written to the Minister about them.

I have asked questions at this Dispatch Box and tabled written parliamentary questions, simply asking whether the Prime Minister met the former KGB officer Alexander Lebedev in April 2018. The House deserves to know what happened, because if the then Foreign Secretary did not understand how inappropriate such a meeting would be—without officials and without close protection officers—at the height of the Salisbury poisoning, we need legislation that is unequivocal in its clarity. We will therefore table amendments to the Bill to address any such lapses in judgment, which stand to have consequences for our national security, while we await answers from the Government as to exactly what did happen in April 2018.

Once again, we in the Labour party are unwavering in our commitment to keeping the country safe. We will work with the Government to support these measures where they are right and overdue, and we expect to be heard and to be able to work together where opportunities for enhanced protections and greater oversight are necessary, appropriate and responsible. We look forward to Committee stage.

National Security Bill (First sitting)

Holly Lynch Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Scott Mann]

Q The Bill allows for oversight of STPIMs. In your view, what is the strength of the independent function of your office?

Jonathan Hall: First, it is being able to go to the room where it happens—the meetings where these decisions are taken. When I review TPIMs, I have a completely free hand. I am able to interrogate officials and able to see whatever I want. That is really important. I am not just looking at judgments in courts, or just reading documents; I am actually there able to interrogate, test and challenge. That is what I do. Also, I think it is important that Parliament and the public have a sense of what is going on. Regrettably, because legal aid has not been made available in all cases for TPIMs, there are now fewer court cases, so general information about how this important but serious power is being exercised is relatively cut off. The independent reviewer can provide a lot of transparency about how it is operating.

[Holly Lynch (Halifax) (Lab)]

Q Thank you ever so much for your time this morning. May I take you to clause 49, which refers to an independent reviewer carrying out a review of part 2 of the Bill? If it is appropriate for you to say so, have you been approached by the Government to consider how appropriate it would be for your office to take on that review of part 2? What is your assessment of how appropriate that would be compared with setting up a new independent reviewer for state threats legislation?

Jonathan Hall: It has been tentatively mentioned. Obviously, because the legislation has not been passed, I have not been formally asked whether I would do it, but it has been tentatively asked. My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation. The reason is that this new legislation is really modelled on terrorism legislation. In crude terms, the concept of the foreign power condition sits in place of the purposes or acts of terrorism, and then there is the same framework in terms of very strong arrest power, detention up to 14 days, strong powers of cordons and search and investigations, and, of course, the PIMs. There are so many learning points between the two regimes that it does make sense.

[Holly Lynch]

Q In your experience, do you think that that level of review should apply to part 1 as well as part 2 of the Bill?

Jonathan Hall: Having thought about this, I do. I do not think that decisions on prosecution are going to be made other than in really strong and good cases. Where I think one needs particular care is with all the strong powers that come before prosecution, for example with arrest and detention, as well as the PIMs, which are based not on beyond reasonable doubt but on the balance of probabilities.

We have to acknowledge that we live in quite a polarised world at the moment and that citizens of individual countries, such as Russia and China, and those who associate with them, are bound to fall under suspicion. There is a parallel here, in the sense that people used to argue—I think wrongly, but they did argue —that counter-terrorism laws in England and Wales were anti-Muslim, and I think having a reviewer is one way of offering reassurance that that is not the case.

[Holly Lynch]

Q Thank you very much. Following the thread of the Minister’s questions on the state threat PIMs and having read your most recent review specifically on TPIMs, may I ask how effective you envisage the state threat PIMs to be, given your understanding of the implementation of TPIMs?

Jonathan Hall: I expect that they will be effective because the agencies and the Home Secretary will only think about imposing one when they think it is going to work. There are many more subjects of interest who have terrorist intents than are currently on TPIMs, and I expect that the same will be true in relation to people who are foreign threats. There will be many more people who are identified as foreign threats who will actually go under PIMs. At the moment I think only two people are under TPIMs, so it is very few. I would have thought that the agencies and the Home Secretary will think very carefully before imposing them.

[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—

--- Later in debate ---

[Stewart Hosie]

Q On the point about beyond reasonable doubt, one of the conditions in clause 33 to deploy an STPIM is that the Secretary of State would reasonably believe that the individual is or has been involved in some activity. If we remove “beyond reasonable doubt”, is “reasonably believes” sufficient, or should it be on the balance of probability?

Jonathan Hall: My view is that it is the same thing.

[Holly Lynch]

Q You said in response to my hon. Friend the Member for Birmingham, Yardley that you had a point to make about part 1. I want to give you the opportunity to make that point.

Jonathan Hall: I am slightly uncertain and concerned about the scope of clause 3(2), the foreign intelligence services offence. On the face of it, an offence could be committed inadvertently, and it does appear to cover quite a lot of lawful conduct. The example that I have been debating with officials is the example of someone who sells miniature cameras, which is undoubtedly conduct of a kind that could assist a foreign intelligence service. My concern with clause 3(2) is that it does not seem to have a sufficient mental element, either that the individual who commits the offence is deliberately acting prejudicially to the UK interest, or knows or ought to suspect that there is some foreign intelligence service involvement, so I have a concern about that particular clause.

[Sally-Ann Hart (Hastings and Rye) (Con)]

Q You mentioned that restrictions to legal aid could be counterproductive and could harm rehabilitation efforts. Can you please expand on that?

Jonathan Hall: Not all terrorists are cold, calculating, ruthless killers who will go and commit terrorist acts whatever their circumstances. They may exist, but there are also quite chaotic terrorist-risk offenders. I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.

My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made and a sense of injustice or grievance on behalf of the terrorist offender, who will perhaps say to themselves, “Why can’t I get legal aid when everyone else in my situation can?” My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.

--- Later in debate ---

[Scott Mann]

Q Just one final question for this witness, if I may. We have just had evidence from Jonathan Hall QC, who reflected that he did not think there was an operational need for part 3 of the Bill. Do you agree that it is legitimate for the Government to disrupt terrorist financing?

Sir Alex Younger: Yes.

[Holly Lynch]

Q Thank you both very much for your time. To echo the Minister’s sentiments, we are grateful for your service to the country as well. Sir Alex, the measures in the Bill, particularly in clause 3 and some of the others on assisting a foreign intelligence service, do not make any attempt to distinguish between countries that are our allies or that we have friendly relations with—you talked about the Five Eyes partners, for example—and those countries that would seek to undermine us or are hostile states. Do you think it should attempt to distinguish between the two?

Sir Alex Younger: First of all, I think it is a good idea, fundamentally, to require people to say if they are acting on behalf of a foreign power. I am supportive of that because I know how difficult it makes it for people intent on conducting operations against us to operate, and makes it much easier to prove. I am therefore instinctively supportive of that, and of a register, and I think that we should get on with that. I have talked to the Government about that; they are understandably cautious, given all the unintended consequences attached to it, and the fact that our adversaries use those techniques in a way that lacks good faith and is malicious. However, fundamentally, I am supportive of it.

I have to be honest; I am more ambivalent about the idea of distinguishing between nations. My view of legislation generally, but particularly when it comes to technology, is that it is a mistake to write things to the current circumstances. It is much better to write things to the principles that you are seeking to employ. I am not a lawyer or a member of the Government, but my recommendation would be that we go for a principles-based approach in so far as we can.

[Holly Lynch]

Q Thank you very much. May I ask you both about clause 23, which grants an extension of powers to the security services? It appears from speaking to other colleagues, particularly Members on the Intelligence and Security Committee, that the current legislation—the role of the Investigatory Powers Commissioner, the Fulford principles and the exemptions in the Serious Crime Act 2007—all works together quite well. Do you think that the extension in clause 23 is necessary and that it has the appropriate checks and balances that you would expect with such an extension of powers?

Sir Alex Younger: You are referring to the amendment to the Serious Crime Act?

[Holly Lynch]

That is right, yes.

Sir Alex Younger: I strongly believe that that is necessary. I am conscious of the concerns that you will have, and even the contentious nature of the assertion, so if you will forgive me, I briefly have to tell you why.

First, alongside our ability to uphold our values and not be terrorists, the other reason why we have been successful in stopping bombs going off has been international partnership. That is because no one state or intelligence service really ever has the full facts. They have to work together and combine their information to get the intelligence that is required, proactively, to disrupt terrorist events. That was true in the analogue world; it is really true in the digital world. It is the thing that works and keeps us safe.

That involves an unavoidable risk. That risk, through all the safeguards that you will be familiar with—but which I am happy to talk about—is managed down to the very lowest level possible. However, ultimately, we are dealing with sovereign actors—other states who we do not control—and ultimately, when we are exchanging large bulk datasets, notwithstanding all the scrutiny and risk management, there is a possibility that there will be data in that dataset whose significance we do not understand until it is compared with another dataset that we do not have. That is an unavoidable risk.

An issue that I think you have to consider is, who should be carrying that risk? My view is that there must be accountability, but where an SIS officer or any other UK intelligence community officer is acting in good faith, within their instructions, as authorised by Ministers, on behalf of you and the public, it should not be them carrying the risk. It is more appropriately carried by the Government more broadly. I feel that, as you can tell from my body language, very strongly, as a leader.

It was unavoidable that we sent our young men and women into harm’s way when it came to physical risk. For instance, I served in Afghanistan. Our people were asked to go out on to the streets day in, day out. It involved physical risk that we mitigated down to the lowest level we could possibly manage, but it was part of the deal.

These risks are avoidable. Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.

Professor Sir David Omand: I very strongly agree with what Alex Younger has just said. I know from my own experience of GCHQ that information-sharing with our close allies and indeed more broadly is essential, and I think it is morally wrong to place that burden on the individual member of staff, who may be quite junior, who is simply following the policies and the instructions that they have had. In the end, the Government Ministers must account if something unexpectedly does go awry.

[Holly Lynch]

Q Would it not be fair to say that no cases have yet been brought against anybody acting in that way on behalf of the security services, and would that not be because the protections that are in place in law already give them the discretion to do some of the activities that we are talking about?

Professor Sir David Omand: My counter-argument would be that this is actually a question of principle—how Government works, particularly in relation to people whom we as a nation are asking to take some significant risks on our behalf. This is an additional risk. You may say that it is theoretical; they may not feel it that way, and I think that we owe it to them to protect them.

Sir Alex Younger: It does not feel theoretical. You know, you have to examine the motives of the staff of the UK IC, who are ordinary members of the public, just like you and me. They are not doing this for personal gain.

There is a very practical point that I think the Committee must consider, which is the incentive. Over time, what is going to motivate admittedly a very mission-orientated community if they see personal legal jeopardy in an area where there is an unavoidable level of ambiguity? I think that will inhibit people from the exercise of sharing. I hope I have been really clear that it is the exercise of sharing that allows us, as a team, to deal with the threats that we face. The risk may be theoretical, but it does not feel like that when you are stood in front of the person or the computer.

--- Later in debate ---

[Ben Everitt]

I think everybody here would agree that a team has to play by the same rules.

[Holly Lynch]

Q The Bill creates a new offence of preparatory conduct in part 1. To what extent do you think that was an omission in previous legislation? I have heard from former members of the security services that they feel quite strongly that this is welcome, but the definition of preparatory conduct is drawn quite broadly. I wonder if you could comment a little on that.

Professor Sir David Omand: I was pleased to see the power in the Bill because, particularly in the digital age, you can take the offensive and you can prepare, but you may not have got to the stage of actually pressing the button. If you can demonstrate that a foreign state was engaged with help from inside the country in some serious espionage or sabotage activity, it seems to me that the very preparation is something that the prosecutors ought to be able to bring forward. In the terrorism example, the cases would be slightly different, but the offence of acts preparatory to terrorism has been extremely helpful to the prosecution authorities for good reason.

Sir Alex Younger: The bottom line is that we have to get in front of this stuff. Just speaking as a counter-terrorist practitioner, that is the additional discipline. It is not like solving the crime. We need to solve it before it has happened, and that raises a set of ethical and legal dilemmas where it is important to be striking the right balance, so I really welcome the proper treatment that we see of that in the Bill.

[Holly Lynch]

Q Sir David, following up on your points about the digitisation of information, Microsoft told me that a great deal of online state activity is around theft and access to data policy development, and think-tanks increasingly becoming a focus for attempts to have a look at and steal that type of work. Are those some of the things that you are seeing in terms of hostile state activity online, and do you think that the clauses in the Bill go far enough in protecting that type of policy work and data?

Professor Sir David Omand: Probably not, but on the other hand you have to balance that against the risk that legislation would inadvertently catch, for example, academic activity in think-tanks. Alex Younger has referred to transparency and covertness. Where a foreign power is taking covert acts and dirty tricks in order to access our institutions, think-tanks and universities, that would be criminalised by the Bill.

Where a member of the embassy of any foreign state represented here attends, quite openly, think-tank meetings and so on—everybody knows who they are and they know they are on the guest list—that does not pose a direct harm. It would be a mistake to start to try to confuse those categories too much. However, what it comes down to is that this is a probabilistic business; this is doing things that increase the chances that we all protect the citizens and the interests of the state. This Bill alone is not going to prevent states from attempting harm against us, and it probably will not catch all those harms either, but it is a good start.

[Scott Mann]

Q I did not get a chance to ask you a question at the start of the session, Sir David, so I feel I am slightly obligated to ask you a question at the end. In terms of the need for reform, some of the legislation that preceded this is very old. You have mentioned some of this already, but could you expand a little on how changing the legislation will address some of the current state threats? It is worth having that on the record again.

Professor Sir David Omand: Well, there is a lot in the Bill. The move away from having to identify states as enemies, for example. States have interests of their own and they will promote those interests. If they are doing so openly through diplomatic and academic means, that is one thing, but if they are doing it, as some are, covertly, then although you might not categorise them as enemies, they are none the less conducting themselves in a way that causes harm. That is one of the examples where I think the Bill takes a more up-to-date view. It is not just nations with which we are at war or potentially could be at war.

[The Chair]

We have a few more minutes. Does anyone else have any further questions?

[Holly Lynch]

Q I will pick up on a thread from the previous question, if that is okay. We talked about some of the physical engagement around think-tanks, universities and academia. Microsoft has done some work that shows the prevalence of targeting online, with Government, NGOs and think-tanks seen as emerging targets for hostile state activity. For understandable reasons, some of the limitations of the Bill would make it quite difficult to pursue and prosecute when theft takes place entirely online by somebody who is overseas. With that in mind, do you think there is anything further that we could do in legislation? Is what we have in the Bill enough to disincentivise, stop, disrupt and criminalise online theft of policy development and data, as opposed to trade secrets, which the Bill is quite explicit about in clause 2?

Professor Sir David Omand: My reading of the Bill is that trade secrets and theft of intellectual property are well covered. You probably also have to have in mind the Online Safety Bill, which has a whole different set of considerations but which is, again, intended to reduce the amount of harmful content that citizens are exposed to. It is quite easy to envisage cases where a foreign state is putting material online covertly and pretending to be someone else.

In the 2016 US presidential election, there were a number of egregious examples of that—for example, in order to stir up conflict within society by exaggerating an existing split in society, be it over race, inequality or any other issue. That is the nature of the threat that we currently face in all democracies. You cannot solve it all by creating criminal offences where a link cannot be established back to the foreign powers condition, but you may be able—by working with the companies, which will exercise their own terms and conditions—to get more of this stuff removed. You need that as well as the powers in the Bill.

[Holly Lynch]

Q Further to that, we intend to table an amendment that would put a requirement on the Government to commission an independent annual review of the prevalence of disinformation pushed online by hostile states—looking at it in its entirety, but also its specific impact on UK elections—to try to deliver the transparency piece alongside some of the new offences. Is that the sort of thing that you think would be helpful?

Professor Sir David Omand: Yes, and another important consideration is public education. I have argued before that we should start teaching critical thinking in schools and teaching kids how to be safe online when they come across deliberate and malicious misrepresentation.

[The Chair]

We have one minute left.

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[The Chair]

I will bring you back in later. I call the shadow Minister.

[Holly Lynch]

Q Thank you, Mr McGuinness, for your service and for keeping us and our communities safe. The Bill creates a new offence of sabotage. Is that something that you felt had been missing from previous legislation?

Paddy McGuinness: It was quite extraordinary that we had a range of different possible offences that relate to the kinds of things that a hostile state would commit in order to sabotage, for instance, critical national infrastructure—a target entity in the UK—and that it was not coherent. What I would put in front of the Committee when you are thinking about this is: the most common thing that I find now in corporate life, but also in Government or in policy space—and in Parliament where I do a bit of advisory work—is stovepiping.

You say “cyber” or “cyber-security” and people immediately think of cyber-security issues, or you say “insider issues” and they say they will deal with that, or they think of physical attacks or physical disruption and they deal with that. They do not understand that this is a playbook, which, if you are a Russian commander, you put together, and you have a choice of what you do.

So you go in an escalation route from, “Can we access this remotely through the internet? Is there another way of accessing it electronically? Do we have a spy within it? Can I send someone from the embassy to go and get close to it and do something to it? Shall I send in Spetsnaz covertly—you know, go to Salisbury and poison some people? Or shall I go to war?” You have that whole range of things and they all relate to each other. And all of them relate to sabotage. We need to approach this by understanding what the adversary is doing and not having little bits of powers in some criminal damage legislation, or in the Computer Misuse Act. That will not do because that is not the purpose of the opponent.

I have described it for disruption and destruction in a sense of warfare, and I have used a kind of Gerasimov Russian example. It is very interesting when one looks at the way in which intellectual property has been stolen. There are a few cases where we see the end-to-end Chinese state effort, where you begin with remote cyber-attacks in close proximity—the case I am thinking of was in the United States—and an inability to get in by those means. Eventually, the subversion and recruitment of a member of staff operating in Switzerland provided them with the intellectual property, which they were not able to access using the cyber techniques. All the way through they were intervening in the networks and activities of that company.

One final thought on this: one of the difficulties with this grey space activity, as Sir Alex described it, is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.

[Holly Lynch]

Q That is incredibly helpful and interesting; thank you very much for that insight. Can I take you from that to a slightly different issue? You heard the previous conversation with Sir Alex and Sir David about hostile state interference and making sure we have protected our democratic processes from that possible risk. How satisfied are you that UK elections are secure from foreign interference?

Paddy McGuinness: The Clerks may have told you, or it may be in my bio, I do not know, but after I left Government I was asked by the Oxford Internet Institute to join them in a thing called the Oxford Technology and Elections Committee, prior to the 2019 elections—with an urgency because of what had happened in the United States in 2016—to come up with some practical suggestions for what we might do to protect our elections. I refer you to it: it is a great bit of work, and the Oxford Internet Institute has gone on doing that work. I am no longer as involved, but there is good work there.

The way I would frame it is this: it is a bit like what I said about the powers that we have. Because we do not occupy the space, others step into it, so because there are not strong controls and real clarity about what is happening around our electoral processes, people mess about in that space. It is really important—this rather echoes something Sir Alex said—that we do not take messing about in the electoral space as being the same thing as delegitimising an election. We have a strong tradition in the United Kingdom of being able to make judgments about whether the way in which candidates have behaved or the way in which money has been spent in a given constituency makes an election void, and you possibly have to run it again. We are used to making that judgment.

One of the risks that I note in this space—again, this is a point Sir Alex made very nicely about Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and—as Sir Alex said—that there is bright transparency so we know who is doing what.

[The Chair]

I bring in Sally-Ann Hart.

National Security Bill (Second sitting)

Holly Lynch Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Scott Mann]

Q Will this Bill allow us to deal with that?

Sam Armstrong: This Bill will do an awful lot to deal with it. There are some offences in the Bill that are drawn extremely broadly and will allow the security services to take a knife to whichever problems they would like.

The Bill does not do certain things that other countries have done. For example, Australia introduced the Foreign Relations Act, which allowed the central Government to terminate relationships that public authorities had entered into with foreign states where they were undermining Australia’s foreign policy position. That is a power that I know Australian officials have been keen to encourage the British Government to replicate.

In terms of assisting foreign intelligence services, which I think is by far and away the most broadly applicable offence in the Bill, and the trade secrets offence, there are broad powers there and the Government deserve commendation for bringing those powers before Parliament, although not before time. The security services have been keenly pushing for them and they will appreciate them in doing their work.

[Holly Lynch (Halifax) (Lab)]

Q Carl Miller, you painted quite a distressing picture of the complexity and volume of the information that is being pushed online by foreign states. If it is not so much about disinformation or misinformation, but about the amplification of uncomfortable truths in a country, which then has a destabilising effect on society, how do we disrupt it?

Carl Miller: That is a great question. We can start by cleaning up the grubby world of spam. Often, when talking about online influence operations and disinformation, we descend into this kind of rarefied world of grand geopolitics, but it has as much to do with a very wide array of services and companies. If anyone googles “buy retweets now”, you will be able to see what I am talking about.

There are a tonne of companies that operate in plain sight, selling social media manipulation as “social media services”. You can buy fake followers; you can buy fake engagement. I looked it up on the way here; as of about 10 minutes ago, there was a company selling positive comments in Ukrainian on Instagram—mostly, they claim, by users from Ukraine—for $78 per 1,000. That is on the light net; we are not even talking about the services that are cryptographically secured or anonymised.

There is an array of these kinds of operations. An almost shadowy grey-area marketplace has emerged, which radically lowers the barriers to entry into doing those kinds of activities. That has always been there, but the consensus has emerged among researchers like me that, over the last year or two, the actual number, sophistication and variety of those services has increased quite dramatically. To be honest, if we were to really try to genuinely start increasing the cost and penalties for the actors that do that kind of thing, we would have to target that entire industry as participants in it.

Lastly, in pulling apart some of the operations regarding Ukraine, our hunch is that state-backed activities have likely made use of those exact same services. We will see states maybe rolling out capability outside of state, setting up as private companies, and selling those capabilities back into state.

[Holly Lynch]

Q Do you think social media companies are doing enough to identify the overseas networks that are pushing such content in the UK?

Carl Miller: I have spent 10 years saying the social media companies have not been doing enough on just about every matter of importance that I can possibly think of. They are doing a tremendous amount more now than before, but that has a couple of implications.

First, we have dramatically overfocused on Facebook and Twitter. There are reasons for that, and a lot of them are the fault of researchers like me. We research Facebook because it is big, and Twitter because it is easy to research. If you have a look at the journalistic stories that drive the awareness and debate, they are very often furnished by exposés and revelations about those two platforms.

If I were to point to one part of the internet that I am genuinely afraid about, it would be Wikipedia. If I were an information operation officer, I would have no idea why I was mucking around with Twitter. In Wikipedia, we have an open platform that is protected and serviced by an open community of people who can freely join. If I were a state, I would employ a phalanx of people to contribute completely legitimate edits to Wikipedia and build up their standing in the community, and then they could run for office within Wikipedia and start using the powers they would gain to change what is on Wikipedia and the policies that govern it.

There are lots of other such open-source communities, many of which, including Wikipedia, inform and drive the decisions that the tech giants make. They have not managed to build the kind of internal defensive teams that a Facebook or a Twitter can to try—often in the shadows and in secret; we do not know enough about what happens—to clear that kind of stuff off at scale.

[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.

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[Scott Mann]

Q I have one more question, if I may. The Bill introduces a new offence of foreign interference, which will criminalise interference in the UK political process. Do you see value in increasing prosecuting options in that area?

Louise Edwards: There is a key principle here, which is that you could hope there is a link between increasing the penalty that can be imposed for an offence and therefore disincentivising or deterring people from committing that offence. That seems like an in-principle link that you would want to see made. That is what perhaps the Bill is aimed at creating.

The measures in the Bill—the offences relevant to elections that are in it—are offences that the police will have to investigate and that will then go through the courts for prosecutions, so really key to making the provisions work effectively is to ensure that the police have the capability and capacity to take them forward, investigating them and passing them on to prosecutors when appropriate.

[Holly Lynch]

Q May I probe a little further to get a better understanding of the role of the commission sitting alongside enforcement agencies in this area? If you were to be made aware of a potential problem, where would the referral to you usually come from?

Louise Edwards: Do you mean a potential problem in the sense of a foreign state interference issue?

[Holly Lynch]

Yes, foreign interference.

Louise Edwards: Okay. If we were made aware of that, it is likely that it would be from the intelligence community or the police, because they are likely to be the ones that would have that information.

If we think about the sorts of offences that are being considered in the Bill, they are broadly around, if we look at the political finance ones, for example, the people who put money into the political system. In political finance, you have the people who are making donations and the people who are receiving the donations, that being the political parties, campaigners and candidates. For donors—the people putting the money into the system—the regime as it currently stands has a set of criminal offences that broadly sit with law enforcement rather than with the commission.

We, as a civil regulatory body, have a set of sanctioning powers for political parties and campaigners, so if we were to be notified of an instance of foreign interference—money coming into the political system from a foreign state power, say—our first response would be to discuss the matter with law enforcement, which would then decide whether to pursue it.

[Holly Lynch]

Q Have there been instances when you have referred something for further investigation to the enforcement agencies?

Louise Edwards: That is how the process would work. It is very common for civil regulators to have a route into law enforcement for anything that is a criminal matter. In fact, a number of offences in electoral law are both civil and criminal, so even now, before the Bill goes through, we would hand anything involving a foreign state power over to law enforcement to take forward. If the Bill goes through, we will have to hand that over to law enforcement anyway, because the offences listed in it will be investigated only by law enforcement, not by us.

We have a good, established process to notify police forces around the UK if we think that a matter is for them to look at and decide whether to investigate. We have very strong links with police around the UK through which we can do that.

[Holly Lynch]

Q Can you give us any sense of the volume of cases you are looking at in this space? As we anticipate this problem increasing, would it be to the commission’s advantage to have any further resources to assist you?

Louise Edwards: The answer to your first question is quite simple: we are not looking at any instances of foreign interference at the moment.

The second question is a very good one. If I may be so bold, I do have an ask. One of the challenges when working with law enforcement is that we do not have effective information-sharing powers. One of the things that the Bill would achieve is to bring the police in particular further into the political finance enforcement regime by making the listed offences matters for them only, rather than for us at all. We need a more effective information-sharing power under which we can just hand evidence straight over to the police, unlike at the moment. Currently, it is like we have to say to the police, “Can you please ask us for the evidence information that we want to give you?” If we could cut through that with some decent information-sharing powers, it would make the process an awful lot more straightforward.

[Holly Lynch]

Thank you. There is an awful lot for us to look at closely there.

--- Later in debate ---

[Scott Mann]

Q How big is the risk to the UK of disinformation?

Professor Ciaran Martin: One sees only the tip of the iceberg when there are major breaches. I will use a well-known example from the United States—a close ally that is perhaps easier to talk about because it does not involve disclosing sensitive things about the UK.

The hybrid operation against the United States in 2015, which the US Government at the time acknowledged formally was undertaken by the People’s Republic of China, involved the extraction of more than 20 million security clearance records from the United States Office of Personnel Management—effectively the civil service department of the US Federal Government. It was the security clearance application forms of everyone who had applied for security clearance from the US Federal Government in the first 14 years of the century. As a dataset, it is incredibly rich. For example, if you are part of a commercial data breach, it is likely to be just your name and email address—possibly a password, although perhaps not even that, and possibly the last four digits of a credit card. If you go through a Government security clearance process, it is everything.

Think of the current politics of the US and China, and think about the established fact that the Chinese Government have this dataset of US Government personnel, with lots of information about them. You can see the strategic impact that that can have. To the best of my knowledge, based on public scholarship and disclosures relating to that incident, it was a largely remote operation, but it did include some activity on the ground. You can see how the sort of legislation we are talking about here might be useful in at least deterring or being able to deal with that.

[Holly Lynch]

Q Further to some of the points that you were making, I think it was the Russia report that identified that, as this hybrid activity becomes an emerging threat, we could be doing more internally and in Government to streamline Departments’ responsibilities for different areas of the response to cyber—whether it is policy development or offensive or defensive cyber—alongside some of the powers here. Do you think there is more we can do internally to try to get a grip and pull all that together?

Professor Ciaran Martin: I would say this, wouldn’t I, but there has been a reasonably decent trajectory of controlling it.

There is a challenge for defenders. If you are attacking—if you are Russia and you have a programme of destabilisation of the UK through these sorts of means—it is all the same programme to you. But if you are defending against it, the defence of the networks of a privately owned critical infrastructure company, such as the energy grid, is one problem, and the protection of sensitive Government networks—diplomatic cables and intelligence services—requires you to do something slightly different.

Disinformation is a different problem again, because historically under our laws, quite rightly, it has not been an offence to make up a lie and put it on the internet. That is different from a cyber-attack. Putting it under a single organisation is really quite hard.

Things were starting to get better around the time of the end of my Government service in 2020, although there is probably some way to go, on the synthesis of operational cohesion—the sharing of information—across these different parts. It is better than it is in quite a lot of other countries—it is less siloed—but I am sure, Ms Lynch, that there is plenty more that could be done to improve it.

[Holly Lynch]

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

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

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

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

[Antony Higginbotham (Burnley) (Con)]

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

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

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

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

--- Later in debate ---

[Scott Mann]

Q One final question from me: I would welcome your reflections on some of the new powers to address some of these state threats, particularly the investigatory powers and STPIMs.

Professor Penney Lewis: I am afraid that I will be less happy about that question. The Law Commission was asked to look at the Official Secrets Act. The project’s terms of reference focused on official Government data, so we have not looked at those matters. There are a number of matters contained in the Bill that were well outside the scope of our project, and I am afraid that we just cannot comment on them.

[Holly Lynch]

Q Thank you for your time today. Can I take you through some different parts of the Bill for your assessment? Perhaps Dr Nicholas Hoggard could answer, as I have had a good look through the chunky read that is the “Protection of Official Data” report and given your work on it. Clause 8 gives the Secretary of State the ability to designate somewhere as being a prohibited place to protect the safety or interests of the UK. Are you comfortable with some of the definitions and powers there?

Dr Nicholas Hoggard: Yes, I think we are. One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.

There are some powers for the Secretary of State that exist under the 1911 Official Secrets Act, but they are quite restricted. What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where there is actually a real risk of harm arising from hostile state activity.

On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.

[Holly Lynch]

Q So you do not think the ability to do so in the interests of the UK, as well as for its safety, gives some quite sweeping powers, which would be open to challenge?

Dr Nicholas Hoggard: I do not think so. We gave some consideration to the differences throughout the project in many different parts of legislation between, say, national security and safety, and interests of the state. There is a risk that one ends up swimming in a sea of semantic exercises and trying to work out what the differences and permutations might be. The requirement to consider what might be necessary to designate a prohibited place in the context of the safety or interests of the state is an important power. I do not think it affords unlimited sweeping power to designate anything.

I think safety or interests of the state still make up a relatively confined subset of consideration. It does not enable somebody to start thinking about, in very broad terms, what might be necessary. I suppose the concern, which was raised by Government at the time and some of the stakeholders, was that if you frame these considerations in the context of national security alone, that might unnecessarily narrow the inquiry. Our position is that safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act, it is consistent with the wording in some of the Bill and it avoids what might risk being an unduly narrow focus on national security.

[Holly Lynch]

Q Can I probe other panel members? There are a number of areas where we talk about the UK interest here. Do you think there is any merit in separating UK interest and Government interest in the event that you have information that will embarrass Government but would not be putting UK national security to any detriment? Is there merit in separating those two principles?

Professor Penney Lewis: The espionage offences here really do not fall into that category. The kinds of offences that you are talking about are the ones currently in the Official Secrets Act 1989 that are about unauthorised disclosure, where there is legitimate concern about information that is embarrassing. Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.

However, in relation to these offences, they have with them conditions that relate to the purpose of the person committing the offence that take them outside of someone who is leaking information, whether to embarrass the Government or not, and focus them squarely on someone who is acting to help a foreign power. I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.

[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 ---

[The Chair]

We have a little more time if anyone has any further questions?

[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 ---

[Scott Mann]

Q You mentioned some of the cyber-threats to elections. Could you expand on the kind of cyber-threats that are posed to national security in the wider sense?

Poppy Wood: Obviously, you have heard from much greater experts than me about hack-and-leak operations et cetera, and I refer you to their remarks about that. In terms of co-ordinated disinformation campaigns, as I said we have seen that in the US election, with really targeted approaches to particular groups that people wanted to divide. When I mentioned that the US Senate said that African-American electors were being targeted, it was clear that the Russians wanted to stir up tensions within that group and between that group and white police. They would really push Ku Klux Klan narratives, false images and all sorts to make sure that those groups were infighting. I would absolutely expect to see that here as well.

Political ads are also a really big issue. I cannot work out whether they are dealt with in the Bill, but they are certainly not dealt with in the Online Safety Bill. The Cabinet Office seems to own the political ads regime, but we are seeing shell companies buying these ads purely to stoke division and tension, and we would expect to see that again. One of the problems with not having a grip of the issue, particularly as we could go into an election period in the UK at any point, is that we need someone to comprehensively pull this all together.

The Russians and the Iranians often leave quite a lot of fingerprints on their work, sometimes intentionally. I know that Ken McCallum, who is director general of MI5, and the FBI discussed the threat from China yesterday. They did not mention disinformation, which I thought was interesting, but the Chinese have historically been much better at not leaving their fingerprints on things, so I cannot really speak to some of their activity. However, we have seen it time and time again.

It is probably best not to talk about the Brexit referendum, but we all know what happened there with the engagement from foreign actors. We should not be surprised to see disinformation. We are vulnerable in the UK because of our role in supporting Ukraine, and we have to pull it all together. If the Online Safety Bill, combined with the National Security Bill, does not do so, I do not know what will.

[Holly Lynch]

Q We have heard in some of the previous contributions that hostile states’ use of disinformation does not always cross the thresholds that we are talking about, and that sometimes it is about the amplification of uncomfortable truths. You used the example of pitting different elements of society against each other in the US elections. To what extent do you think we need to improve some of our definitions and understanding, so that we can start looking at how we disrupt disinformation?

Poppy Wood: We have to be careful not to try to define disinformation. There is some language in the Bill about misrepresentation, and the idea of intentionally misrepresenting is important. We will never get a grip on exactly what disinformation is, because it is a shapeshifter.

On the first part of your question, it is about the system of amplifying and the ease with which people with malicious intent can manipulate systems by creating fake accounts, not verifying IDs and exploiting the recommender algorithms so that they hook you with one piece of content. We see this time and time again. One piece of bad content is not the problem, but they hook you on it, which then leads you down a rabbit hole to something much darker and more radical. It does not even have to be radical; it can be the sort of stuff that we were talking about with the Scotland referendum. It can be innocuous, such as stories about what the royal family are doing. It is about sowing seeds and exploiting cognitive dissonance, which bad actors are very good at and which social media is absolutely weaponised to make the most of, because of the pace and amplification of the content.

The Online Safety Bill goes part of the way there; it is imperfect, partly because it is so hard to define disinformation. There is very little in the Online Safety Bill on disinformation. There is an advisory committee that is years down the road. It is ironic that the National Security Bill is about trying to rein in certain types of transparency. Transparency is a really big part of all this, so it is about trying to find out who is behind things and what the data patterns really look like, and building in researchers. I think that was something Ken McCallum said last year. A holistic approach is a cross-Government approach, but it also involves industry, civil society, journalists and researchers. Everyone has to focus on this. Both Bills could go further on systems and, as I say, the co-ordinated inauthentic behaviour language just is not there either.

[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.

--- Later in debate ---

[The Chair]

Last but not least, we will now hear from Dr Nicholas Hoggard, lead lawyer for—I am so sorry; it is that time of day and the lack of coffee. [Laughter.] I should have confiscated my colleague’s coffee and had it for myself! Apologies; we are going to hear from Dan Dolan, the director of policy and advocacy at Reprieve. We have until 4.40 pm for the session. Could you introduce yourself for the record, Mr Dolan?

Dan Dolan: Thank you very much. My name is Dan Dolan, and I am the director of policy and advocacy at Reprieve, a legal action charity that seeks to uphold the rule of law and human rights around the word. Over the past 20 years, Reprieve has provided legal and investigative support to hundreds of prisoners on death row, the families of innocents killed in drone strikes, victims of torture and extraordinary rendition, and scores of prisoners in Guantanamo Bay. Thank you for the opportunity to give evidence.

[Holly Lynch]

Q Thank you for your written evidence. We have heard from the security services that they deem elements of clause 23 necessary to protect some of their staff from possible prosecution. I note that you say in your written evidence that those changes protect Ministers. Can you take us through that in more detail?

Dan Dolan: Absolutely. I should start by saying that we absolutely recognise that the country’s intelligence agencies do a difficult and often dangerous job to keep us safe, and we give our evidence in recognition of that. We think clause 23 is much more likely to protect Ministers and senior officials from criminal liability than anyone in the midst of an operation overseas.

The reason why we say that is because there is already a regime, under the Intelligence Services Act 1994, under which acts that could constitute a criminal offence overseas would be authorised by a Minister if they are in the furtherance of the agencies’ duties. That is well recognised. The Minister who took that Act through described offences such as bugging, bribery and burglary, which you can imagine an officer of the intelligence agencies may need to do overseas to keep the UK safe. That regime already exists in law, and it allows for authorisation of potentially criminal acts overseas.

Clause 23 disapplies provisions of the separate Serious Crime Act 2007 relating to encouraging or assisting the commission of a crime—specifically, schedule 4, which relates to extra-territoriality, meaning crimes that would be encouraged in the UK but committed overseas. There is already a regime that protects officers of the UK who are involved in operations overseas and do things that may be criminal by giving them insulation from criminal liability.

Clause 23 insulates people from criminal liability for acts undertaken in the UK to encourage or assist offences overseas. Realistically, we are talking about conduct that might take place, for example, behind a desk in Whitehall, but would ultimately result in what would be a criminal offence overseas. There is an existing legal regime to cover offences of those who undertake them outside the country; this is about actions taken within the country, if that makes sense.

[Holly Lynch]

Q The framework of checks-and-balances scrutiny that oversees existing legislation would be weakened by adopting clause 23. Would that be your assessment?

Dan Dolan: Yes, it would be. Effectively, clause 23 looks a lot like an effort to protect Ministers from criminal liability for actions that they encourage or assist in the UK that could constitute a crime overseas. This is not a hypothetical idea. There have been instances that were extensively documented in the Intelligence and Security Committee’s detainee report, where UK Ministers and officials authorised intelligence sharing that led to appalling torture and mistreatment of people overseas. The ISC has documented that extensively.

A good example is the case of Abdul Hakim Belhaj and his wife Fatima Boudchar, who in 2004 were rendered to Libya where they faced appalling mistreatment, both in Libya and in the course of their rendition by the US CIA. Subsequently, it emerged that the UK Government had provided the tip-off to enable that extraordinary rendition. The couple ultimately received an apology from Theresa May’s Government, recognising that the UK had shared intelligence that had contributed to the couple’s absolutely appalling mistreatment.

That is not an isolated case. During the war on terror era, there were many instances where the UK shared intelligence that contributed to torture. That has been recognised. The then Prime Minister recognised that in her response to the ISC’s report, and pledged never to do that again. What this clause would do is effectively to insulate Ministers from criminal responsibility for those kinds of offences.

[Holly Lynch]

Q Further to that, we have heard today, and I have heard from the intelligence services before today, this sense that, while hypothetical, the fear of prosecution of individuals acting under orders is having a chilling effect on the work that they need to undertake. On occasion, it has meant that they have had to pause and cease some of the operations that they feel are quite routine or essential as part of defending the UK’s national security interest. With that in mind, is there an alternative way through this? Could the provision be amended or alternative safeguards added to arrive at those individuals having the protection that they need, while having some of the safeguards and checks and balances that we are concerned might be missing at this time in clause 23?

Dan Dolan: That touches, importantly, on the point about whether clause 23 would protect officers acting overseas in the UK’s national interest, or whether it would protect politicians and officials taking actions in Whitehall, like sharing intelligence. In response to your question, I want to read a quote given by MI6 to the ISC’s detainee inquiry—quoted in the report—with respect to section 7 authorisations under the 1994 Act. The Secret Intelligence Service said that, in the cases they were talking about,

“we are … always going to go for a section 7 authorisation. Because, you know, why should my officers carry the risks on behalf of the Government personally? Why should they? So, you know, as we have already discussed, serious risk is…a subjective judgement. So we will go for belt and braces on this.”

I think that “belt and braces” is the important phrase to think about, because that is MI6 describing the separate 1994 section 7 authorisations as a belt-and-braces approach to protecting officers from criminal liability. That regime exists already, under the Intelligence Services Act 1994, so why do we need clause 23? It relates to actions taking place here in the UK—not people operating abroad on operations, but people acting in the UK—so what kind of actions are we talking about? The area that is not covered under existing legislation is the authorisation of acts or the sharing of intelligence that happens here in England or Wales.

We are therefore not of the opinion that the clause would offer additional protection over and above the 1994 Act. The clause covers a different category of offence, and that would be the encouragement or assistance of a crime from within the United Kingdom. We are talking about Ministers and officials approving things here, not people on operations overseas.

My final point—I know this was made on Second Reading—is that the Serious Crime Act 2015, sections of which would be disapplied by clause 23, already includes, in section 50, a reasonableness defence. Even if you imagine a case in which the Government argue that a Minister needs to order something that might be a crime overseas in the national interest—they would have to make a strong case for that—they would have a legal defence under reasonableness to say that their action was reasonable under section 50 of the Serious Crime Act. What we are talking about here is clause 23 disapplying legislation that would hold Ministers to account were they to encourage or assist a crime overseas.

[Jess Phillips]

Q On whistleblowing, which I was speaking to the prior witness about, do you think the Bill does enough to protect people who act against the UK Government, such as whistleblowers?

Dan Dolan: I am sorry to be unhelpful, but Reprieve’s evidence largely covers the provisions under clauses 23 and 57 to 61. I can pass it on to somebody.

National Security Bill (Third sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[The Chair]

Before I call the shadow Minister, it might be helpful if I clarify the order of debate that I normally expect to see. The person who has proposed an amendment moves it. By and large, anybody else then takes part in the debate, including the shadow Minister. The Minister replies to the debate and then the proposer gets a short whack at the end. On this occasion, I will call the shadow Minister, and then the Minister will have an opportunity to reply before the proposer rounds up.

[Holly Lynch (Halifax) (Lab)]

I am eternally grateful, Mr Gray. It is great to see you joining as Chair of this Committee on this particularly important piece of legislation. Thank you for the refresher on the order in which the Front-Bench spokespersons take part in proceedings.

We have had a highly unconventional start to this Bill Committee. I do not think anybody is more relieved to see the Minister in his place—perhaps the Government Whip. I really do welcome the Minister to his place and wish him all the very best. I know he has made every effort to get across the detail of the Bill in the incredibly short time he has had to prepare. I echo the sentiment we expressed on Second Reading and offer him the assurance that the Bill has our support. It is right, and increasingly urgent, that our laws are updated. We intend to be nothing but constructive in our scrutiny, deliberations and suggested additions, as we work together to ensure that the legislation is as effective as we all need it to be.

The Home Office’s impact assessment is clear that:

“The threat from hostile activity by states is a growing, diversifying and evolving one, manifesting itself in several different forms including espionage, foreign interference in our political system, sabotage, disinformation, cyber operations, and even attempted assassinations.”

I was struck by the testimony of Sir Alex Younger, the former chief of the Secret Intelligence Service, in last week’s evidence session. In response to a question about how threats to the UK have changed, he said:

“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason.

My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in subthreshold space—operations short of conventional war—to harm us.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11-12, Q21.]

Following detailed pieces of work such as the Intelligence and Security Committee’s “Russia” report and the Law Commission’s “Protection of Official Data” report, we have been calling for progress in this legislative area for many months, so we welcome the opportunity to work with the Government to get it right.

As the Minister has outlined, clauses 1 to 3 will introduce three new espionage offences: obtaining or disclosing protected information, obtaining or disclosing trade secrets, and assisting a foreign intelligence service. As was highlighted by the Government’s integrated review in 2021, state threats to Departments, national infrastructure, British businesses and private individuals are growing and becoming ever more complex. The situation in Ukraine and the ongoing Russian aggression have brought about an urgency to introduce new offences in this area, but make no mistake: this has been an emerging trend in contemporary national security threats for years.

The director general of MI5, Ken McCallum, in his joint address to UK businesses, journalists and academics with the director of the FBI last week, said that alongside the situation in Ukraine, the

“most game-changing challenge we face comes from the Chinese Communist Party. It’s covertly applying pressure across the globe… We need to talk about it. We need to act.”

I thank the director general and all those who are working so hard in our UK intelligence community for the work that they undertake around the clock to keep us safe. They have to respond to threats that most of us cannot begin to comprehend. We are grateful for their service, and it is at the forefront of our minds as we consider what they need from us in order to do their job. Therefore, these new offences, which reflect the changing dynamics of the challenges to our national security, very much have our support.

Clause 1 criminalises obtaining or disclosing protected information. Further to the Minister’s introduction to the clause, we heard from the witnesses last week about the need for the clause. It is a particular focus of the Law Commission’s “Protection of Official Data” report, and the commission confirmed that it was satisfied that the offences

“reflect well the recommendations that we made.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 50, Q94.]

In explaining why the offences are required, the “Microsoft Digital Defence Report”, which was published in October last year, identified that Chinese actors engaged in this type of activity mostly targeted data and intellectual property exfiltration. A broad range of sectors has been targeted, including comms infrastructure, the defence industrial base, IT, education, law firms and medical research. Interestingly, the report said:

“In the last year, espionage, and more specifically, intelligence collection, has been a far more common goal than destructive attacks.”

However, rather than commercial or industry targets, Microsoft’s data shows that

“nearly 80% of those targeted were either in government, NGOs, or think tanks.”

Its analysis suggested that,

“Think tanks often serve as policy incubators and implementers, with strong ties to current and former government officials and programs. Threat actors can and do exploit the connections between the more traditional NGO community and government organizations to position themselves to gain insights into national policy plans and intentions.”

The theft of research, policy development and datasets has been the focus of hostile state actors in recent months, so we are satisfied that there is a need for the new offence created by clause 1.

--- Later in debate ---

[Holly Lynch]

As the Minister just outlined, the clause creates an offence in relation to obtaining or disclosing trade secrets. The former deputy National Security Adviser, Paddy McGuinness, set the scene for this new offence when he gave evidence last week. On the trade secrets element, he said that it does “a very significant thing”, and continued:

“This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.”

He said:

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

He also said:

“The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 25, Q50.]

All that provides an incredibly sobering outlook on the scale of the challenge that we face as a country.

Let me work through some of the detail further. We have some queries about this clause, as we did for clause 1. The seriousness of the clause is underlined by the fact that it creates an offence for which, if someone was found guilty of committing it, they would find themselves with a jail term not exceeding 14 years imprisonment, or a fine, or both. The Minister did not give us that extra bit of detail about the sentencing guidelines in the discussion about clause 1. I wonder if he might be able to return to that point in the discussion on clause 2.

Further to that, I confess that on my first reading and several subsequent readings of the clause, and having listened carefully to the Minister explain the detail of who can be prosecuted and where, it seems to suggest that this offence could be committed only by a UK national. I asked a former member of the intelligence community to have a look at it, and they felt that subsections (4) to (7) on who can commit the offence only seem to refer to a UK person, a United Kingdom national or a British citizen. Only on seeking a legal opinion was it judged that it could be interpreted to apply to non-UK nationals, but only if their criminal activity takes place in the UK. It does not apply where this activity is wholly outside the UK. That same legal opinion queried what it means to be “wholly” outside the UK, as that is unclear in this online age. It is also unclear why obtaining UK-related trade secrets unlawfully is not criminalised for non-UK nationals operating entirely from abroad, as is the nature of a lot of this type of activity.

We are not naive to the additional barriers to bringing someone to justice in these circumstances, yet such activity is no less wrongful because of nationality or where the criminal act takes place. With that in mind, I would be grateful if the Minister could confirm, first, for absolute clarity, that this crime can be committed by non-UK nationals when acting in the UK and we could prosecute them using this clause on that basis. Secondly, why does the clause not extend to criminalising non-UK nationals when they commit this offence in the theft of UK intellectual property and trade secrets outside the UK? Will the Minister clarify those points?

Again, we have the principle of “ought reasonably to know”, which warrants further consideration and clarity. On the “ought reasonably to know” threshold, I have it on good authority from former members of the intelligence community that the duping of individuals by nation states into doing the bidding of that nation state is not uncommon tradecraft. Are we satisfied that we have the right balance in that regard? Any clarity that the Minister can provide on the sentencing guidelines would be enormously welcome.

[Simon Jupp (East Devon) (Con)]

On a point of order, Mr Gray. Would you mind awfully if Members were to take their jackets off?

--- Later in debate ---

[Mr Kevan Jones]

I understand the thrust of the clause, but I would like some clarification on the definition of assisting a foreign power. I have one historical example, although I think it might not work. Eddie Chapman— Agent Zigzag from the second world war—was working for both sides. He was a UK agent and a Nazi agent. He got an Iron Cross for his misinformation work. In that case, he was not assisting a foreign power, because he was given dud information, but what about the case of a UK-based foreign diplomat who is working against us and supporting his or her nation, but is also then feeding information to us? It could be argued that that individual is working against our interests, because they are working on behalf of that other nation, but separately they might be the source of information. What would happen to that individual?

Gordievsky is a good example; he was in the Russian embassy in London for many years, feeding a lot of vital information to the UK, but his daily activities would have been prejudicial to the UK’s interests. How would the clause apply to individuals like that? Would they be separated out because of their benefit to us, although certain activities they are conducting would not be of benefit? I give just two historical examples, but there might be others in the future. Where would those individuals fall under the provisions in the clause?

[Holly Lynch]

As we have heard, the clause introduces a new espionage offence of assisting a foreign intelligence service. A person commits an offence if that person

“engages in conduct of any kind, and…intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”

Once again, we are broadly supportive of the clause. As highlighted by the Government’s own integrated review in 2021, threats to Government Departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. The clause goes a long way towards updating the threat posed by modern-day espionage and the changes are long overdue. The Intelligence and Security Committee’s 2020 Russia report stated:

“The current legislation enabling action against foreign spies is acknowledged to be weak. In particular, the Official Secrets Acts are out of date—crucially, it is not illegal to be a foreign agent in this country.”

Nevertheless, it is important that the Government clarify a number of different aspects of the clause. I highlight two recommendations from the Law Commission’s 2020 review of the Official Secrets Act. Recommendation 12.5 stated:

“In any new statute to replace the Official Secrets Act 1911, the requirement that the defendant’s conduct was capable of benefitting a foreign power should continue to be objectively determined. There should be no requirement to prove that the defendant personally knew or believed that his or her conduct had such capability.”

Will the Minister confirm that that requirement is compatible with the new offence established in clause 3?

The Law Commission also highlighted the danger of an individual unknowingly assisting a foreign intelligence service and then still being charged and convicted with the same offence as an individual who actively sought to assist a foreign intelligence service. This defence is currently accounted for in the Official Secrets Act 1989, as my right hon. Friend the Member for North Durham discussed. I appreciate that that Act is not being updated by this legislation, but the principle still stands. The Law Commission’s recommendation 12.24 stated:

“The ‘defence’, currently contained in section 1(5) of the Official Secrets Act 1989, of not knowing and having no reasonable grounds to believe that the material disclosed related to security or intelligence, should continue to apply.”

It is naive to think that foreign intelligence services advertise who they are and what they are planning to do with any information they are given by someone or in any engagement they may have. The duping of individuals is a somewhat common tool in espionage tradecraft. Let us say that an overseas business research company commissions a UK national to explain how the UK’s parliamentary processes work, but it transpires that the business research company was working for a foreign intelligence service. Under clause 3, could the UK national still be tried for assisting a foreign intelligence service?

We welcome the exemptions in subsection (7) that create an appropriate space for democratic obligations and diplomacy to take place, especially as the Bill makes no distinction between countries that are our allies and those that are hostile and seek to undermine the UK’s interests. However, I also note that the offence is explicit about the definition of a foreign intelligence service. On first reading, I had concerns that where someone is sharing information with a former member of intelligence services, the definition might not extend to criminalising that conduct. As the old saying goes, once a KGB officer, always a KGB officer.

However, given that the definition included in subsection (9) outlines that “foreign intelligence service” means

“any person whose functions include carrying out intelligence activities for or on behalf of a foreign power”,

I understand that anyone sharing information with former KGB officers, for example, would be committing an offence. I would be grateful if the Minister could confirm that that is the case.

[Stephen McPartland]

That was a range of great examples, and I will do my best to address them. The whole purpose of the clause is to provide our world-class intelligence agencies and law enforcement with the tools to respond appropriately to activity conducted in and against the UK by foreign intelligence services that wish to cause us harm. Although the Government understand and appreciate the intention behind the amendment, we propose to reject it.

The distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, clause 3(4) requires the conduct to be

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

That is to ensure that we target the most harmful activity overseas that has an appropriate link to the UK. For activity taking place inside the UK, there is currently no requirement for the activity to be prejudicial to the safety or interests of the UK. However, taking into account the defence in clause 3(7), foreign intelligence service activity carried out in the UK without even informal agreement or assent is inherently prejudicial to the UK’s safety or interests. Having to prove beyond a reasonable doubt why that activity is prejudicial risks creating a high evidential threshold that could, as we try to meet it, potentially compound the damage caused.

Clause 3(4)(a) has been drafted to ensure that the offence can prevent a wide range of activities from occurring and prevent threats from developing. Any legitimate activity would be covered by the three elements of the defence in clause 3(7), so there are appropriate safeguards in place. If a foreign intelligence service carried out activity in the UK and its conduct did not fall under clause 3(7), we must be able to call it out for what it is and prevent further harm from being caused. The current construction of clause 3(4) allow us to do exactly that, and the amendment risks reducing the operational utility of the clause as a whole.

We cannot allow the UK to become a hotbed for foreign intelligence services running covert and deceptive operations. I understand the examples that have been given, and I am looking into some of them, but the reality is that we need to be in a position to protect the intelligence services and give them an opportunity to go out there and deal with these people and the threats we face. As I have said, we have three protections throughout the whole Bill. We are coming up with lots of examples, but by answering each of them specifically, we will just provide our enemies and state threats with ways to work around the offence.

--- Later in debate ---

[Stephen McPartland]

The amendment clarifies that clause 3(7) contains a defence, rather than an exception, because it may be unclear which of the two it is as currently drafted. In doing so, two changes must be made to the clause. One will insert new wording to show that clause 3(7) is a defence, and the other will insert subsection (7A), which states that the defendant must adduce some evidence to establish that a matter in clause 3(7) is satisfied. The prosecution will then be required to prove that it is not met beyond a reasonable doubt.

We tabled the amendments to provide clarity to the operational community and to make absolutely clear the intention behind the offence. Clarifying that clause 3(7) is a defence places an evidential burden on the defendant to adduce evidence that one of the three conditions in subsection (7) applies to them. If someone raises a defence under subsection (7), the prosecution will need to prove beyond all reasonable doubt that the defence does not apply.

There are three separate elements to subsection (7). If it is an exception, the prosecution would be required to prove in all cases beyond reasonable doubt that none of the three elements applies. That would potentially be challenging to evidence, given the wide range of circumstances under which the matters in the clause may arise. In effect, the prosecution would have to prove a negative. Where an offence is believed to have been committed and a prosecution is pursued, subsection (7) being an exception would mean that all three conditions would need to be shown not to apply in each case that is brought forward for prosecution. That is not our intention, and the amendment will mean that defendants must raise a defence under subsection (7), and the prosecution must then prove beyond all reasonable doubt that it does not apply.

We have worked closely with our operational partners, law enforcement and the Crown Prosecution Service on this amendment to provide greater clarity about the scope of clause 3. By tabling this amendment to subsection (7), we can more clearly represent the policy intention behind clause 3 as a whole.

[Holly Lynch]

I have the Minister’s explanation. We considered the implications of Government amendments 1 to 4 earlier, and on that basis we are satisfied.

Amendment 1 agreed to.

Amendments made: 2, in clause 3, page 4, line 8, leave out “is” and insert “was”.

This amendment is consequential on Amendment 1.

Amendment 3, in clause 3, page 4, line 10, leave out “is” and insert “was”.

This amendment is consequential on Amendment 1.

Amendment 4, in clause 3, page 4, line 10, at end insert—

“(7A) A person is taken to have shown a matter mentioned in subsection (7) if—

(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.” —(Stephen McPartland.)

This amendment provides that a defendant bears an evidential burden in relation to the defence in clause 3(7).

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4

Entering etc a prohibited place for a purpose prejudicial to the UK

[Stuart C. McDonald]

I beg to move amendment 50, in clause 4, page 5, line 9, at end insert—

“(7) No offence is committed under subsection (1) if the conduct is for the purposes of protest unless the conduct is prejudicial to the safety of the United Kingdom.”

This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this section.

--- Later in debate ---

[Mr Jones]

I sympathise with the amendment. In terms of legitimate protest, I may disagree with, for example, the peace camp at Faslane, but does it fall within the remit of the clause? Is that proportionate in an open and free society? I may disagree with what the protesters call for, but I would defend their right to make their opinions known.

We need clarity and to get the balance right between legitimate protest in the public interest and protecting security. The clause is detailed on access to prohibited areas. The clause states that a person commits an offence if they cause

“an unmanned vehicle or device to access”

an area. That is very clear. A drone, for example, would be prohibited. But what happens in the case of a trained eagle wearing a camera? I think that is covered by “device to access” an area. Will the Minister confirm that if someone strapped a camera to an eagle and sent it over a prohibited site, that would be covered by the Bill?

The clause is clear about inspecting

“photographs, videos or other recordings”,

but how wide is the area? It would cover someone standing with equipment that had access from 20 miles away, but what about somebody just observing through binoculars? Would that be covered? How big is the prohibited area? If we are not careful, the points that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has raised could fall within the scope of the Bill, or be used by the Government to stop legitimate protest or people who have an interest in opposing activities taking place at a certain site.

[Holly Lynch]

The SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and my right hon. Friend the Member for North Durham have outlined their thoughts on amendment 50. I will speak to clauses 4 and 5 more broadly.

Clause 4 establishes a new offence of entering a prohibited place for a purpose prejudicial to the UK. We welcome the measure, and the protection it will offer to sites and places that are vital to our national security. It has been a long time coming, and we have been falling back on somewhat antiquated legislation in the absence of such provisions. Giving evidence to the Intelligence and Security Committee in January 2019, the director general of MI5 said,

“The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc.”

In his evidence on behalf of the Law Commission last week, Dr Nicholas Hoggard said

“One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

Clause 4(2) sets out that,

“a reference to inspecting a prohibited place includes—

(a) taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place;

(b) inspecting photographs, videos or other recordings of the prohibited place.”

We heard some more innovative examples, as my right hon. Friend the Member for North Durham likes to think outside the box, and as those acting on behalf of hostile states will continue to evolve and adapt to the legislation that we progress through this place.

Clause 4(3) explicitly states that the offence applies if the person inspects a prohibited place

“by electronic or remote means”,

and clause 4(4) states that the offence applies

“whether the person’s conduct takes place in the United Kingdom or elsewhere.”

The use of drones has been an asset in many ways, but inevitably a headache in others. I have raised concerns previously on behalf of constituents that it is at the extremes of distaste and disrespect for drone footage of serious or even fatal accidents to be taken by members of the public and shared on social media, or published by news outlets. It is with urgency that we need to update the laws that ensure national security is not compromised in the absence of up-to-date legislation, but for the reasons I have highlighted I hope this might also be the start of a conversation about drones, beyond their national security implications.

Clause 5 establishes that

“A person commits an offence if—

(a) the person—

(i) accesses, enters, inspects or passes over or under a prohibited place, or

(ii) causes an unmanned vehicle or device to access, enter, inspect 15 or pass over or under a prohibited place,

(b) that conduct is unauthorised, and

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

The Opposition welcome this provision, and see it as a necessary step to protect sites that are vital to our national security. I would like to probe the Minister on the stipulation that a person who commits an offence “ought reasonably to know” that their conduct is unauthorised. There is a concern that an individual may unknowingly stumble on a prohibited place, and then be prosecuted in the same way as someone actively seeking to undermine UK national security. Further detail on the sentencing guidelines might allow us to work through that uncertainty, but we have to work with what we have in primary legislation. The chances of that occurring are made more likely by the fact that this stand-alone offence does not need the foreign power condition to be met.

Let me provide some rare light relief in today’s proceedings. In 2016, civilians began to wander on to the grounds of several restricted air force and military bases in Canada while playing Pokémon GO, which is an augmented reality game where characters spawn randomly in the proximity of a user’s location—it was all the rage at the time. Documents released on request to the Canadian Broadcasting Corporation revealed the military’s confusion about what was happening at the time. One email from a major read,

“Please advise the Commissionaires, that apparently Fort Frontenac is both a PokéGym and a PokéStop”.

He went on to say,

“I will be completely honest in that I have no idea what that is.”

Just three days after the app’s release, two men drove a van on to an air force base near Toronto just before midnight. A corporal confronted the occupants and found them playing with their smartphones. In another incident, one woman was found at the Borden base playing the game, while her three children climbed over tanks. In their attempts to get on top of what was going on, the documents revealed that one colonel wrote,

“There’s a game out there taking off like gangbusters, and it requires people to move to digitally cached locations to get points”.

I do not know what “gangbusters” means. Another security expert recommended they hire a 12-year-old to help them out with the problem.

As part of the military response, at least three officers at different bases were assigned the task of playing Pokémon GO on site, and logging the appearance of every gym, PokéStop, and wild monster. In what I thought was a particularly enterprising spirit, in my constituency of Halifax’s namesake, they instead recommended that the PokéStop be relocated nearer to the museum, in the hope that it would increase footfall in a helpful rather than unhelpful way. I intended to share those examples by way of demonstrating that innocent players of Pokémon GO should be protected from the harshest of sentences, but on reflection, having read out the details, I am not so sure.

Back to the serious—I could not find specific examples here in the UK, but I can only imagine that there were some. We cannot afford to create carve-outs for Pokémon GO players that could be exploited by those acting on behalf of hostile states. The example outlines the need for appropriate consideration of such mitigations in the sentencing guidelines for such offences.

I note that the Law Commission proposed that in any reform of the Official Secrets Acts, a safeguard similar to that contained in section 131 of the Serious Organised Crime and Police Act 2005 should be introduced, requiring the Secretary of State to take such steps as he or she considers appropriate to inform the public of the effect of any designation order, including, in particular, by displaying notices on or near the site to which the order relates. That would ensure that an individual is given fair warning that he or she is approaching a location that is given enhanced protection by the criminal law. If I am not mistaken, that point was made by the right hon. Member for Dundee East on Second Reading. I hope that the Government will recognise the merit of doing so.

[Maria Eagle]

I have a short point of clarification for the Minister, if he would be so kind. It is about what is covered by the offence.

I am looking at clause 5(1)(a)(i), which states:

“A person commits an offence if…the person…accesses, enters, inspects or passes over or under a prohibited place”.

Clause 5(3) clarifies further:

“In subsection (1)(a) a reference to inspecting a prohibited place includes taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place.”

Does that include someone who is off the premises with binoculars or some device to enable them to look closely at the prohibited place, without being under or over it? Does that include the old-fashioned spy looking through binoculars and taking notes, rather than taking photographs, or is that not covered by the clause? It does not seem that it is, but I might have missed something. I will be grateful for clarification.

--- Later in debate ---

[Stephen McPartland]

I will move on to amendment 50. The condition inserted through amendment 50 removes the term “safety or interests of the United Kingdom” in the context of protests. It is the Government’s view that this is detrimental to the offence under clause 4 as it limits the range of conduct that would be considered prejudicial to the UK and risks creating loopholes that hostile actors could use to exploit using protest as a tool to disrupt sensitive sites in the UK. It is also likely to mean that sites that are not directly involved in the safety of the UK would not be afforded any protection where protests are being inappropriately used to disrupt the lawful functioning of the site. It is crucial that we retain the existing term if we are able to effectively protect the UK’s most sensitive areas from harmful activity.

In addition, the effect of amendment 50 would be that no offence would be committed by protesters if their conduct were not, as a matter of fact, prejudicial. In practice, this would not have any further effect on safeguarding protest activity because if the activity were not in fact prejudicial, a person cannot know, or be in a position where they ought reasonably to know, that that is the case. The amendment may be designed to ensure that no offence is committed unless actual damage results from the conduct, but it would not have that effect and the Government would not support a narrowing of the offence along those lines. While I understand the intention of the amendment, I do not see any requirement for it, given the fact that sufficient safeguards for legitimate protesting activity are already in place.

It is important to say that we will work with the police and the College of Policing ahead of commencement of the provisions to ensure that those implementing these clauses have the appropriate training and guidance to use these powers proportionately. I do not support the amendment and ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraws it.

Finally, clause 5 provides a second offence to capture harmful activity within the reformed prohibited places regime. A person commits this offence if, without authorisation, they engage in conduct at a prohibited place and they know, or reasonably ought to know, that their conduct is unauthorised. A person’s conduct is unauthorised if the person is not entitled to determine whether they may engage in the conduct, or if they do not have consent to engage in the conduct from a person entitled to give it—for example, if they walk past signage stating that access to the site is prohibited without authorisation, or if they take pictures from outside the site in spite of clear signage that that is not permitted.

[Holly Lynch]

This is a question I asked members of the UK intelligence community because I could not answer it: does a list of prohibited places exist in the public domain? Such a list might equip someone with the information prior to arriving at a site and enable them to determine whether a place is prohibited. It is not clear to me whether a list exists. Can the Minister clarify?

[Stephen McPartland]

I am grateful to the hon. Lady for her intervention, and I will certainly look at that. A number of sites will be prohibited in law, and some sites will not want people to know exactly where they are and what they are doing because they will become targets. Once again, there is a balance to be struck in relation to provision for the intelligence community.

[Holly Lynch]

I completely accept the sensitive nature of the subject and why we might not want to put such information in the public domain, but with respect to the “ought reasonably to have known” defence, I wonder whether we should ensure that people are equipped with the information that a site is indeed prohibited before they find themselves, perhaps accidentally, in a compromising position. How can we ensure that all that is communicated appropriately and sensitively so as to protect people from accidentally falling foul of these stipulations?

[Stephen McPartland]

It goes back to the reasonableness test: is the person conducting a reasonable activity, or is the activity prejudicial to the United Kingdom’s national security interests?

For a person to be guilty of the offence, the prosecution must prove beyond reasonable doubt that the person knew, or reasonably ought to have known, that their conduct—for example, in entering the prohibited place—was unauthorised, which provides protections. Unlike the clause 4 offence, there is no requirement that the person have a purpose prejudicial to the safety or interests of the United Kingdom to commit this offence. That ensures that action can be taken in cases when a person has knowingly carried out unauthorised conduct at a prohibited place, such as trespassing, without having to consider whether that person has a purpose prejudicial to the United Kingdom’s safety or interests, which requires a higher threshold of potential harm to be demonstrated.

To take account of the fact that a purpose prejudicial to the safety or interests of the United Kingdom does not need to be proven, there are differences between the conduct caught under the offence under this clause and the offence under clause 4. For example, this offence does not criminalise the inspection of photographs of prohibited places, and it is not capable of capturing conduct in the vicinity of a prohibited place.

The Government do not consider it proportionate or necessary to capture the inspection of photographs under this offence, given that inspecting a photograph that has already been taken of a prohibited place cannot be classed as inherently unauthorised activity. Given the wide range of legitimate activities that could be undertaken in the vicinity of a prohibited place, and given that there is no inherent need for walking past a prohibited place to be authorised, the offence under clause 5 does not capture activity in the vicinity of a prohibited place.

The second prohibited places offence under clause 5 is a crucial addition to the tools our law enforcement agencies and courts can use to capture the full range of harmful activity that can take place at prohibited places. Even though this offence is not aimed at capturing the most damaging activity around those places, as clause 4 does, and attracts lower penalties, it is equally important that we introduce an offence that can capture activity that may seem less severe, but is still capable of interfering with and damaging the operations and security of the United Kingdom’s most sensitive sites.

This offence should be seen as part of a tiered approach alongside the new police powers to protect those sites, which I will come to, and it will ensure that law enforcement has a range of tools and powers at its disposal to protect those sites.

--- Later in debate ---

[Stephen McPartland]

The powers set out in clause 6 allow for a police officer to exercise specific powers in order to protect prohibited places. A person commits an offence if they fail to comply with an order imposed under the police powers in relation to a prohibited place. Those powers include the ability to order a person who has accessed or entered a prohibited place or is in the vicinity of one to leave it immediately. Under these powers, a police officer may also arrange for the removal or movement of a vehicle or device from a prohibited place or an area adjacent to a prohibited place.

Alongside the police powers, the clause provides that is an offence to fail to comply with an order given by a constable under those provisions. As an example, if a person is circling the perimeter of a prohibited place and taking detailed photographs of the infrastructure and activities within, the police may order this person to cease to engage in that activity and leave the area immediately, given that they are carrying out an inspection of the site and their activity is in an area adjacent to the prohibited place.

In order to exercise any of those powers, a constable must reasonably believe that doing so is necessary to protect the safety or interests of the United Kingdom. For example, exercise of the powers may be necessary for the prevention of activity that could harm or disrupt the operations or functioning of a prohibited place. In most instances, we consider that the use of these powers will be intelligence-led and that the police will be called to prohibited places where there is a concern identified from the site itself.

The aim of the police powers in relation to prohibited places is not to impede legitimate activity, such as lawful protest, but rather to catch and deter activity around prohibited places that is prejudicial to the safety or interests of the UK. That includes activity that is harmful to and disrupts or impedes the functioning or operations of a prohibited place, such as scaling fences, blocking access points or wider disruption to the critical and sensitive work being conducted at these sites. Ahead of implementation, my officials will work with the police and the College of Policing to ensure that clear guidance and training are in place to ensure that the powers are used reasonably and proportionately to protect these sites.

The additional powers are a critical part of the reformed prohibited places regime and provide significant operational utility, given that they enable law enforcement to prevent harmful activity from taking place at these sensitive sites—activity that could be a precursor to state-threat offences such as espionage or sabotage. Without their inclusion, the UK will be less equipped to counter hostile activity as it happens, which will leave these sites more vulnerable to state-threat activity or wider threats that do not have a state link.

[Holly Lynch]

Subsections (1) and (2) set out the powers that police constables can exercise to protect a prohibited place, which include ordering a person to cease their activity or move away from the site. Subsection (3) provides that a constable must reasonably believe the use of those powers to be

“necessary to protect the safety or interests of the United Kingdom.”

This includes prevention of activity that could harm or disrupt the operations or functioning of a prohibited place in a way that could jeopardise the safety or interests of the United Kingdom.

The clause gives the police powers to direct people to stop using devices and leave the area, but when I discussed its detail with a recently retired senior police officer he observed that the clause seemingly does not confer on the constable the power to seize the device or any video or images or, indeed, sketches or footage off the back of an eagle taken by the device. Can the Minister explain whether that is the case? If so, would the clause not benefit from an addition to prevent any such sensitive material from leaving the scene with a person instructed to take it with them?

I find it curious that all police officers tend to be referred to as “constable” in legislation, despite the fact that constable is just one of several possible ranks. Indeed, there is some variety in the responsibilities for keeping sites defined as prohibited places safe. The Civil Nuclear Constabulary, overseen by the Civil Nuclear Police Authority, is the armed police force in charge of protecting civil nuclear sites and nuclear materials in England and Scotland. The Ministry of Defence police is responsible for law enforcement and security of military bases in the UK; as it says on the tin, it reports into the Ministry of Defence.

Will the Minister confirm that the powers conferred in clause 6 extend beyond those officers serving in regular police forces that report to the Home Office? It is the specialist forces sitting outside of those structures that tend to pick up the lion’s share of the responsibility for protecting prohibited places. Could he confirm that the powers apply to all officers, regardless of rank, and where the military also provide defences at their own sites, or are at least partnering in that work? Could the Minister explain whether the powers extend to the military, or are exclusively for police officers?

Finally, the powers conferred will also allow a constable to arrange for the removal of a vehicle from a prohibited place “or an area adjacent” to it. Does the Minister envisage any further guidance on what constitutes “adjacent to a prohibited place” to assist a constable in determining distance, proximity, and so on, in making those judgments and communicating those clearly in a reasonable way to members of the public?

[Stephen McPartland]

I am grateful to the hon. Lady for the very good points she has raised. My understanding is that the powers currently apply only to police officers, not to members of the military. It is very clear throughout the clause that it refers to “a constable”, and it is referenced as “Powers of police officers”.

National Security Bill (Fourth sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Stephen McPartland]

Amendments 5 to 8 make critical additions to the definition of “prohibited place” in clause 7. The sites used by the UK’s intelligence services are some of our most sensitive locations and must be afforded the measures and protections given by the wider prohibited places provisions. These measures will mean that those who commit unlawful conduct can face prosecution under either of the two new prohibited places offences in clauses 4 and 5. Moreover, the police will have powers to stop people engaging in conduct in relation to a prohibited place that may harm the safety or interests of the United Kingdom. While the Government initially intended to add these sites by way of regulations, on reflection we concluded that it would be preferable to give Parliament the opportunity to debate the provisions up front—lucky me!

The amendments make provision for sites used by the intelligence services to be prohibited places under the meaning of “prohibited place” in clause 7. Under amendment 5, any land, building or part of a building used for the functions of the intelligence services will be designated only if it is also owned or controlled by those services. That offers safeguards so that places used temporarily for the functions of the intelligence services would not be designated; that would not be proportionate. I will not dwell on amendments 6 to 8, which are consequential, centralising the definition of a building for the purpose of the clause and providing a definition of GCHQ.

Turning to clause 7 stand part, section 3 of the Official Secrets Act 1911 sets out the places that are, or can be by declaration, a prohibited place under existing legislation. They are mainly defence-related sites or those that are used, or can be used, in times of war. Clause 7, which replaces those provisions, defines what sites will be prohibited places for the purposes of the two offences in clauses 4 and 5 and the police powers in clause 6, and it has been drafted to continue to capture the majority of the sites that are set out as prohibited places in the existing provisions.

The language and drafting has been simplified to ensure that there is clarity about what is or is not a prohibited place under the clause, removing long lists of terms that are less relevant for modern legislation. The definition in the clause includes Crown land or a vehicle in the UK or the sovereign base areas of Akrotiri or Dhekelia used for UK defence purposes or for the defence of another country. That covers the range of defence sites, including military barracks, bases and military headquarters.

Limiting prohibited places to Crown land in the UK or the sovereign base areas ensures that the provisions retain a focus on places important for UK defence, and that the range of sites covered does not become disproportionate or impractical. The definition is extended to sovereign base areas in Cyprus because there are several military bases there that are important for UK defence and should be covered by these provisions, as they are now.

Clause 7 also ensures that we can continue to capture defence vehicles as prohibited places. A vehicle used for defence purposes would include military transportation that is either sensitive in itself—for example, aircraft, vessels, submarines or tanks—or used for the purposes of transporting sensitive defence technology, equipment or weaponry. That may include trains or convoys used for the purposes of transporting weaponry. It is crucial that those vehicles are afforded the protection that the prohibited places regime provides.

Clause 7 also designates Crown land or vehicles in the UK or the sovereign base areas used for the purposes of the defence of a foreign country or territory. It is imperative that these provisions extend to and protect the sites and vehicles that the UK’s allies use and operate. For example, there are several military bases in the UK out of which our allies operate; those need to continue to be afforded the protection given by the prohibited places regime. Lastly, clause 7 covers buildings or vehicles designated by regulations made under the clause 8 designation power.

Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. In order to do so, the Secretary of State is required by the clause to reasonably consider the designation necessary to protect the safety or interests of the United Kingdom. The designation can be made either by listing specific sites or vehicles or by introducing a description of sites or vehicles. Any site that met such a description would thereby be designated—for example, the listing of UK defence vehicles would capture military aircrafts, tanks, submarines and vessels. The clause maintains our existing ability to designate sites while ensuring it is appropriately modernised and futureproofed, as recommended by the Law Commission.

When deciding whether a designation to declare an additional prohibited place through the power in clause 8 is necessary to protect the safety or interests of the United Kingdom, the Secretary of State must have regard to certain matters, including the purpose for which the place is used; the nature of the information held, stored or processed on the land or in the building or vehicle; and the nature of any equipment, technology or material that is located on the land or in the building or vehicle. That requirement provides safeguards to ensure that only sites at risk of harmful activity can be designated as prohibited places.

The power to designate additional prohibited places is limited to land or buildings in the United Kingdom or the sovereign base areas in Cyprus, or any vehicle. Although it may seem broad to enable the designating of any vehicle around the world as a prohibited place, in most instances it would be possible to capture harmful activity at such vehicles only within the United Kingdom or in countries with which we have extradition agreements, given the difficulty of enforcing the offence overseas. It is beneficial to be able to designate a vehicle anywhere in the world because, unlike land or buildings, vehicles are clearly capable of being moving targets at different locations.

In the near term, the Government intend to designate as prohibited places certain sites in the nuclear sector, including major licensed nuclear sites. Specific nuclear sites such as Sellafield and Dounreay are currently designated as prohibited places under the existing provisions of the Official Secrets Act 1911. The Government want to ensure that sites in the sector continue to be afforded protection under the reformed prohibited places regime. Consultation is currently ongoing with the nuclear sector to ensure that the range of places that require designation as prohibited places are captured and that the impact of any designation is fully considered before a decision to designate is made.

Given that in rare cases it may be necessary to rapidly designate a site as a prohibited place in response to intelligence about an imminent threat at a certain location, the reformed designation power is subject to the negative parliamentary procedure. The power could be needed to rapidly designate, for example, medical research facilities used during a public health crisis that may be the target of state threat activity. Even in such rapid cases, the Secretary of State must still reasonably consider designation necessary to protect the safety or interest of the United Kingdom and we would expect that, where reasonably practicable, the Secretary of State would consult with the landowner.

A designation power to declare additional prohibited places is a crucial part of the reformed regime. By futureproofing the provisions in such a way, we can continue to capture and deter those who seek to conduct harmful activity at the United Kingdom’s most sensitive sites, as the threat landscape will undoubtably evolve over the coming years. I ask the Committee to support the inclusion of clauses 7 and 8 in the Bill and to agree to the amendments.

[Holly Lynch (Halifax) (Lab)]

Let me take clauses 7 and 8 and Government amendments 5, 6, 7 and 8 together. As the Minister has outlined, clause 7 defines a prohibited place for the purposes of clauses 4 to 8. The definition includes Crown land and vehicles used for defence purposes; places used for the invention, development, production, operation, storage or disposal of weapons; and land, buildings or vehicles designated by regulations made under clause 8.

Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. This will ensure that additional sites that are vulnerable to state threat activity can be designated when it is considered necessary. The Committee will note that, historically, the list of prohibited places has had a strong, if not total, military focus.

We just need to read the legislation to be struck by how dated it is. The Official Secrets Act 1911 defined a prohibited place as:

“any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty”

and so on. While reflective of the contemporary climate and the threats posed to the UK, this list has long been out of date. We therefore welcome this expansive update for defining what a prohibited place is, as well as giving the Government the ability to adapt the list where there is a reasonable case to do so. In the light of that, we recognise that Government amendments 5, 6, 7 and 8 complement the clause in that aim.

That said, I did probe the Law Commission during last Thursday’s evidence session on this point. It is important that this legislation is laid in such a way that it is not used by Government or future Governments to infringe on other democratic freedoms. During the consultation period of the Law Commission’s report on the Official Secrets Act, a number of stakeholders expressed concern about giving the Home Secretary such powers to designate a new site as a prohibited place.

The Trinity Mirror raised concern that an unchecked power to create designated sites based on national security may create a new criminal offence without parliamentary debate and could potentially stifle legitimate investigations in the public interest. WhistleblowersUK stated that the list should not end up being widened to include council officers or schools, for example. It would be incredibly worrying if a Home Secretary interpreted this power to allow himself or herself to mark places that served a purpose in the execution of an unpopular Government policy, for example, as a prohibited place. I outlined these concerns to Dr Nicholas Hoggard of the Law Commission, who provided some reassurance. He said,

“What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where

there is actually a real risk of harm arising from hostile state activity. On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

I look to the Minister for the same political assurances: that such powers would not be used should the Government find that to declare somewhere a prohibited site would serve a purpose in the execution of an unpopular Government policy, for example. Having gone through the prohibited places National Security Bill factsheet on the Government website, I have already asked the Minister what information should be in the public domain to confirm that somewhere is a prohibited site.

I completely accept that somewhere might be so secure that extensive signage and its inclusion on any such list might not be appropriate. However, in the event of our Pokémon GO example, it is about being able to check without needing to travel to a prohibited place to observe the signage to find out, which might itself bring someone in scope of earlier offences. I want to ensure that the status of such a site, the restrictions and the consequences of not adhering to those restrictions are appropriately and clearly communicated to the public.

Before closing, I want to bring the Minister’s attention to clause 7, where we have sovereign based areas overseas for UK defence purposes. He has made the undertaking to consider military powers within the earlier clauses on police powers. It is my understanding that the Ministry of Defence police would not provide that service to these sites deemed to be prohibited places within clause 7. Once again, he might need to write to us to work through some of that detail further.

[Mr Kevan Jones (North Durham) (Lab)]

Mr Gray, we know that it is officially summer when you remove your jacket.

--- Later in debate ---

[Stephen McPartland]

I commit to write to the hon. Member for Halifax—and the whole Committee—to answer her point about the police. I totally accept the genuine concern I am hearing from across party lines about what safeguards are in place to ensure that a place is designated for reasons of defence as opposed to Government embarrassment. The safeguard is that the power to designate only be exercised may if the Secretary of State reasonably considers it necessary to do so in order to protect the safety or interest of the United Kingdom.

[Holly Lynch]

There is that difference between safety and interest; it would be quite easy for a Home Secretary, if she has an unpopular deportation policy—to give a topical example—to argue that that it in the UK’s interest rather than its safety. That gives us cause for concern.

[Stephen McPartland]

I appreciate that. We have heard this morning and in previous sittings about that tension in respect of the Government interest and defence. There is case law that defines it. The purpose of the Bill is to provide the intelligence services with the tools they need to keep the country safe. They feel that they need these tools to do that. There are safeguards. The idea behind the number of factors is that there are a variety of checks on the Secretary of State, so they would have to demonstrate all the way through that they have considered that multitude of factors and that it was necessary for the defence of the country.

On the point made by the right hon. Member for North Durham, I cannot believe I am going to say this but I cannot tell him what I have been briefed, for national security reasons. The reality is that in these clauses we have moved away from designating places to categories. One of the categories is unavowed sites. That means that some of the sites that he suggested would be covered by the category.

--- Later in debate ---

[Stephen McPartland]

The power set out in clause 9 allows a constable to designate a cordoned area around a military aircraft, part of an aircraft or related equipment. Regrettably, there have been several aircraft crashes over the past several years, including an F-15 aircraft crash in Lincolnshire in 2014. In such cases it is common for sensitive technology or material to be dispersed, and a specific power to cordon an area will ensure that such material is sufficiently protected until it can be removed.

Under the clause, a constable may designate an area under the cordon power only if they consider it expedient for the purposes of securing an aircraft, parts of an aircraft or equipment relating to such an aircraft, used for military purposes. The clause goes on to describe the process for designating a cordoned area this power, including ensuring that the boundary is appropriately marked and that a written record is made of the relevant decisions.

Members will appreciate the interest that hostile actors would have in accessing military technology. A cordon power that allows us to protect sensitive military aircraft technology beyond prohibited places—for example, in the event of a crash—is a tool that our armed forces and police can use to prevent harmful activity from taking place if sensitive technology is exposed and becomes vulnerable to access or inspection.

Clause 10 sets out the duration for which a designation of a cordoned area made under the clause 9 power may have effect. The end of the cordon must be specified in the designation, and initially an area can be cordoned only for a maximum period of 14 days. The initial period of the cordon specified in the designation may, in many cases, be adequate for the secured military aircraft, parts or related equipment to be safely removed. Should the process take longer—for example, if more time than originally anticipated is required in the event of a criminal investigation or an investigation by the Defence Accident Investigation Branch—the duration can be extended up to a maximum of 28 days from the point of the initial designation. Setting out the duration for which a designation of a cordoned area may have effect is an essential provision as part of the wider military aircraft cordon power. It prevents the provisions from being implemented for longer than is justified or proportionate.

Clause 11 provides the police with the powers to enforce a cordoned area that has been designated under the clause 9 power. The powers are similar to those that the police are able to use to protect prohibited places under clause 6. They include requiring a person not to carry out specified conduct, such as entering or inspecting a cordoned area; requiring a person or persons in charge of a vehicle or device to leave a cordoned area or an adjacent area immediately; and arranging for the movement or removal of a vehicle from a cordoned area.

It is especially important to have powers in relation to an area adjacent, given that people are able to take photographs, videos or other recordings of a crashed aircraft that is within a cordoned area from outside the cordon perimeter. The powers to prohibit such activity allow for enhanced protection against the threat that may be posed when sensitive technology or information is exposed—for example, hostile actors may still be able to gather potentially damaging information from outside a cordon through the use of long-range cameras, or may use photos and videos obtained by others and posted on social media.

Alongside the powers I have outlined, clause 11 will make it an offence to fail to comply with an order given by a constable under the powers. There may well be instances in which a person has a reasonable excuse for failing to comply with such an order, so the clause includes a defence to protect those who have a legitimate reason to be within a cordoned area.

The police powers in relation to a cordoned area in clause 11 are crucial, as they give our law enforcement agencies the tools needed to deter hostile actors from accessing the sensitive defence technology or material that may potentially be exposed—for example, following the unfortunate event of a military aircraft crash.

[Holly Lynch]

Clause 9 provides a power for the police to create a cordoned area around a defence aircraft, presumably, as the Minister outlined, if it has crashed or had to make an emergency landing outside a prohibited place. We agree that the powers in clause 9 are entirely appropriate and that the ability to cordon off scenes of that kind is necessary to ensure that the aircraft and any equipment or material relating to it can be sufficiently protected until removal has been completed. Under subsection (2) a constable may designate an area under the cordon power in subsection (1) only if they consider it expedient for the purposes of securing an aircraft used for military purposes, or part thereof, or equipment relating to that aircraft.

I have explored this clause with a recently retired senior police officer, and I will relay his query. Why is this provision needed, given that the police already have the ability to cordon off such areas through common law powers? Where is the gap that needed to be closed by the clause? What does it do that was not there previously? The Minister may outline the differences we have missed; further to that point, the explanatory notes make it clear that the power will not be applicable to aircraft other than those used for military purposes. Say, for example, a civilian fixed-wing light aircraft has raised espionage concerns, having flown over a prohibited place without clearance before making an emergency landing: although it would not be a military aircraft, I would be quite comfortable with clause 9 powers being used in such circumstances. Will the Minister consider that in his response?

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[Stephen McPartland]

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

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

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

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

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

Clause 12

Sabotage

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

[Holly Lynch]

Clause 12 is a substantial addition to the Bill so warrants further consideration. It introduces a new bespoke offence of state-sponsored sabotage, capturing activity conducted for, on behalf of or for the benefit of a foreign power, resulting in damage to property, sites and data affecting the UK’s interests and national security, which we are happy to support. What has taken the Government so long? It is an extremely welcome provision.

The need for a specific criminal offence of sabotage on the UK’s statute books is long overdue. The necessity for it has increased over time. Over recent years, the nature of sabotage—most notably, the nature of cyber-attacks and sabotage—has changed rapidly. Subsection (3) outlines all the ways in which the act of sabotage can manifest. Subsection (1)(b) is explicit, covering a person’s intent and whether they are

“reckless as to whether their conduct will result in damage”.

As MI5 director general Ken McCallum highlighted,

“cyber is no longer some abstract contest between hackers in it for the thrill or between states jockeying for position in some specialised domain...cyber consistently bites on our everyday lives.”

I was struck by the evidence provided by Paddy McGuinness, the former deputy national security adviser, when I asked him about clause 12 last week. He said:

“one of the difficulties with this grey space activity…is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q47.]

The sense that someone engaged in espionage on behalf of a hostile state could just as easily be instructed to engage in sabotage reminds us why the new offences are necessary as a package of measures. A report published by Lloyd’s of London only last month crystalises the threat posed by cyber-attacks and sabotage. The report, entitled “Shifting powers: Physical cyber risk in a changing geopolitical landscape” and written in partnership with the Centre for Risk Studies at the University of Cambridge, warned that:

“Whilst most cyber-attacks are digital, physical cyber-attacks–defined as virtual attacks which trigger physical disruption–are becoming increasingly commonplace. The rise of state-sponsored cyber-attacks is a significant focus for businesses and governments, driven by an evolving geopolitical landscape in the wake of Russia’s invasion of Ukraine.”

The UK’s national cyber strategy, published in February this year, also demonstrates the potential threat posed by cyber-sabotage. It states:

“The threats we face in and through cyberspace have grown in intensity, complexity and severity in recent years. Cyber attacks against the UK are conducted by an expanding range of state actors, criminal groups (sometimes acting at the direction of states or with their implicit approval) and activists for the purpose of espionage, commercial gain, sabotage and disinformation.”

From this, we can see that cyber-activity could be prosecutable under a number of the new offences, but I know that the ability to robustly take on sabotage with clause 12 is welcome to those on the frontline of mounting the UK’s defences.

Although outside of scope of the Bill, I will briefly make the point that the Computer Misuse Act 1990, which was the first major legislative attempt to tackle cyber-crime and criminalise hacking, is now also long overdue an update. May I suggest that we have another look at that legislation alongside the Bill and the provisions in this clause, to ensure that we are meeting the cyber-challenges we face as a nation as robustly as is required?

Existing legislation largely fails to accommodate for state-sponsored acts of sabotage. The Criminal Damage Act 1971 defines sabotage as:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

We therefore welcome the foreign power condition in subsection (1)(d), which will allow police to bring to justice those who work for or conspire with hostile Governments to prejudice the safety or interests of the UK.

We welcome that the offence will link to the preparatory conduct offence to give law enforcement and the intelligence agencies the powers to intervene at an early stage. Despite the changing nature of sabotage, we also welcome that the clause contains provisions to tackle acts of physical damage on sensitive sites, such as critical national infrastructure, property belonging to Her Majesty’s Government, military buildings and sites, other defence assets, or acts that impact goods, systems or services supplying the UK, such as data centres or undersea cable infrastructure. If I have not been clear enough, we very much welcome the addition of clause 12 to the Bill.

[Stuart C. McDonald]

I echo much of what the shadow Minister, the hon. Member for Halifax, said. As ever, I have slight concerns about the breadth of the foreign power condition and how that might interact with sabotage—for example, if a protest on behalf of one of the aforementioned non-governmental organisations causes some damage to a site. Of course, such protestors should face criminal law, but I would hope it would be general criminal law rather than the sabotage offence set out in clause 12 and the heavy sentence that comes with that.

For all the reasons set out by the shadow Minister, we support the inclusion of clause 12. The Minister moved the clause formally, but it would be useful for us to talk it through because this is a new departure for us, and it would be interesting to hear the Government’s thoughts on the nature of the offence.

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[Stuart C. McDonald]

I will be brief. Clause 13 introduces a general offence of foreign interference that is punishable by up to 14 years in prison. As with clause 12, we support the broad idea—indeed, the structure of the offence appears to make sense—but it is a fairly novel departure for this country. I look forward to hearing the Minister talk us through precisely how the provision will work given that it is so novel and fairly complicated. I have said my piece on my concerns about the foreign power condition and the rather nebulous concept of the interests of the United Kingdom, so I will not repeat it.

The amendment asks a short, sharp question. Condition A applies if the foreign offence takes place outside the UK, and it is met only if the conduct is an offence under the law of England and Wales. The simple question is: why does that apply to England and Wales only? It does not apply to Scotland or to offences under the law of Northern Ireland. I genuinely do not know what the thinking behind that is. There may be a perfectly reasonable answer, and the amendment is designed to tease it out. I look forward to hearing much more from the Minister about how the offence will work. On the whole, the clause provides a justified and welcome new offence that we would support.

[Holly Lynch]

Clause 13 is quite substantial, and creates a new and general offence of foreign interference. Under the clause, someone who behaves recklessly but for whom an intention to aid a foreign intelligence service cannot be proven would not be committing an offence, unlike under clause 12.

The hon. Member for Hastings and Rye has a particular interest in that element of the offences. She will remember that in last Thursday’s evidence session, she asked Professor Sir David Omand, the former director of GCHQ, about the question of recklessness in clause 13. He said that he

“looked to clause 24, ‘The foreign power condition’, and there is quite a lot of scope in it for a successful prosecution to demonstrate that the individual who has, as you say, acted recklessly, could reasonably have been expected to know that their act would benefit a foreign power, for example, so I was not so concerned about that particular question.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 17, Q34.]

However, in response to a very similar question, Carl Miller, the research director of the Centre for the Analysis of Social Media at Demos, made the interesting point that introducing recklessness in such a way may make businesses or service providers take their responsibilities on those types of risks more seriously when agreeing to take on commissioned work. I put that example to the Minister in our discussions on clause 3.

We will propose later in proceedings, through new clause 2, an independent reviewer to look annually at all the powers in the Bill—not just part 2—and not only check that we have the right balance when using the powers, and consider any unintended consequences, but make recommendations. I think clause 13 is viewed as fair by both sides of the Committee, but I hope that our debate about recklessness has shown that new clause 2 would make a great deal of sense.

Government amendment 9 is a welcome step—if somewhat presumptuous—that would make foreign interference a priority offence in the “Online Safety Act”, as on the amendment paper. It is slightly odd to amend the Online Safety Bill through this Bill, given that that Online Safety Bill is only just out of Committee—it is on Report in the Chamber as we speak—but the change is a very welcome development none the less. Reset.Tech’s Poppy Wood spoke in evidence of her hopes for that provision, and was pleased to see its addition.

Later in proceedings, we will come back to what more could be done in the disinformation space when we discuss new clause 3, which addresses the reporting of disinformation originating from foreign powers. Alongside clauses 13 and 14, we have discussed separately with the Minister that we are still awaiting further news about the planned foreign influence registration scheme, which has been called for since the aforementioned 2020 Russia report. It was a big focus on Second Reading, when the Minister’s predecessor was under a great deal of pressure from the Chair of the Intelligence and Security Committee and others for not having produced the detail in time for the whole House to be able to discuss and debate it. The practical outcome of the implications of clause 13 is that we would like to see the detail as soon as possible, and the Minister knows our views on that.

Before closing, I want to touch on the issue of foreign interference. On Second Reading, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) spoke extensively about the need to tackle shell companies. The new offences outlined in these clauses will mean little if they cannot be detected or if measures are rarely enforced. Again, we urge the Government to remove the loophole that allows shell companies to be used to make donations to political parties, and to hide foreign donations and donations linked to hostile states. I expect the Minister will say that further work on interference of that type is under consideration as part of a second economic crime Bill, but I am looking to him for further assurances on that type of foreign interference.

[Maria Eagle (Garston and Halewood) (Lab)]

I rise to support some of the points made by my hon. Friend the Member for Halifax. Given the Minister’s recent arrival, I am sure that this is not his responsibility and would not have happened had he been in charge, but it is particularly bad for a Government amendment to seek to amend a Bill that is still going through its Commons stages and has not reached the other place. In fact, it is still on the Floor of the House. It is a particularly poor practice that I hope the Minister, in his new role, will deprecate among his officials and seek to prevent from happening in the future.

It is really bad for the Committee to seek to amend a Bill that is still on the Floor of the House and has not been passed yet, when it is quite clear—unless the Minister has a good reason why it is being done this way, which I would be interested to hear—that it is not sensible for us to amend a Bill that has not yet even passed its Commons stages. It seems to be a recipe for incoherence and confusion. I hope that the Minister will agree and seek to prevent us from seeing such amendments in the future, because it is just rank poor practice.

The clause introduces an important defence for the country and fills a gap that has needed to be filled for many years, so I very much support it. However, it is noticeable that, unlike clause 12, which we have just discussed and approved, the offence set out in clause 13 does not include recklessness in the same way as some of the other offences set out in the Bill. There must be a reason for that, but it is not immediately apparent what that is, and it would help the Committee a great deal if we could hear the rationale for recklessness being left out.

Obviously, the offence also does not include where an individual is unwittingly used to conduct the activity that the person who is engaging in the interference is seeking to conduct. I can understand that a bit more, because if someone is a dupe—perhaps without any intention or recklessness at all—one can understand why the offence might not extend to that person. However, given that some of the offences being introduced by the Bill do include recklessness, it would still constitute an offence if there was recklessness rather than intent. Why has recklessness not been made a part of the offence? I am sure there is an explanation, and I think it would help the Committee a lot to hear what it is. If there is no good explanation, perhaps the Minister might go back and produce an amendment that includes “recklessness” in clause 13.

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[Holly Lynch]

I listened carefully to the Minister. The Opposition welcome those measures in clause 14 that will bolster the UK against acts of foreign interference in our elections that are committed on our soil and abroad. For too long the Government have been complacent about the threat of foreign interference, and we seek to complement the measures in the Bill through new clause 3. I will continue to make the case for the new clause, but I have heard what the Minister had to say.

According to a report from the Centre for Strategic and International Studies, Russian hackers launched a cyber-attack in 2014 against the Polish electoral commission’s website, which damaged faith in the election. In 2015, the German Parliament was the victim of a cyber-attack linked to Russia that was aimed at collecting documents ahead of the federal elections. During the Scottish independence referendum, pro-Russia accounts on social media spread stories claiming voter fraud.

Ahead of the Finnish parliamentary elections, Russian entities created fake social media accounts posting as official parliamentary accounts. At first, those accounts posted mainstream political content and amassed thousands of followers, but as the election neared, the accounts turned to posting misinformation and vitriol aimed at sowing confusion among the electorate. Russian-sponsored disinformation through state media and fake social media accounts was also rampant in general elections in Italy and the Netherlands throughout 2017 and 2018, and in Spain at the time of the Catalonian independence referendum.

The evidence base is massive, and those are examples of just some of the most aggressive and obvious attempts to interfere in elections, which, until now, legislation has largely failed to address. We can only assume that, as Russia’s belligerence increases, so will its attempts to undermine our democracy and society. The measures proposed are long overdue.

On being asked his thoughts on the matter in last week’s evidence session, Paddy McGuinness made the interesting point that

“because there are not strong controls and real clarity about what is happening around our electoral processes, people mess about in that space.”

He wanted to make a distinction between “messing about” in that space—as he put it—and delegitimising an election. He went on to explain that

“Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and…that there is bright transparency so we know who is doing what.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q48.]

Turning to the relevant electoral offences in part 1 of schedule 1, I wonder whether the list of offences is grounded in a dated understanding of how someone might seek to interfere in an election when acting on behalf of a state. Although they are all very serious in themselves, my concern is that they might need a fresh look to consider whether they would capture state actors interfering in elections.

It is worth noting that in its 2020 Russia report the Intelligence and Security Committee recommended that MI5 should be operationally responsible for upholding the safety of our democratic process, stating:

“In our opinion, the operational role must sit primarily with MI5, in line with its statutory responsibility for ‘the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy’.”

Last week, we heard from Louise Edwards, director of regulation at the Electoral Commission. Despite the fact that almost all the other witnesses confirmed that state interference in elections was a significant cause for concern, we heard that the Electoral Commission is not currently undertaking any investigations on the issue. That suggests that, as things stand, it is not the right organisation to lead on this work.

With all of that in mind, we very much support the provisions in clause 14 and are content with schedule 1 —despite the points I have made—and with Government amendments 10 and 11. However, I would also make the case for new clause 3, and I am seeking to persuade the Committee and the Minister that an annual review on disinformation, with particular consideration of interference in elections, would help with the transparency and awareness piece that needs to sit alongside these offences. I think the Minister said that some of that would replicate the work already happening in Government, but he largely talked about the enforcement agencies being stepped up to try to protect those processes in real time from interference. All of that is actually quite clandestine; it does not seek to enhance the public’s understanding of some of that interference, which might assist them in making informed decisions when digesting information and allowing that to inform their voting decisions. The new clause would grant the Government the discretion to determine who would be best placed to carry out that annual but independent review, with the Intelligence and Security Committee being one of the bodies that could undertake it.

We have discussed the matter with the UK intelligence community, and it was clear from the evidence we heard on Thursday that raising awareness within the general public is a slightly separate piece of work from criminalising and disrupting hostile activity online. We heard that, while disinformation and misinformation are a problem—Government amendment 9 is very much welcome in tackling that—there is the issue of the amplification of often uncomfortable truths or single viewpoints, which is much harder to address. None the less, efforts should be made to identify the origins of such content and ensure that the public can see how narratives and public discourse can be manipulated to suit the agendas of foreign states, empowering the public to make more informed judgments about how they use social media. When I put these proposals to Poppy Wood of Reset.tech on Thursday and asked for her judgment about the measures and about who would be best suited to undertake such a review, she said:

“That is a brilliant idea…It should probably be a body like the Intelligence and Security Committee—some kind of cross-party body, quasi-independent of Government”.––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 60, Q113.]

I have heard what the Minister has said, and I very much hope that he will take seriously his commitment to have a further look at this issue—not just at the law enforcement of it, but at a report that would be published in the public domain that would reveal some of the origins of this content, alongside criminalising it where it meets certain thresholds. I will give the Minister the benefit of the doubt, and I am persuaded to withdraw new clause 3 on the basis that he does commit to further consider this matter very seriously.

[The Chair]

Of course, we will deal with new clause 3 when we get to the new clauses at the end.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Schedule 1

Foreign interference in elections

Amendments made: 10, in schedule 1, page 51, line 5, at end insert—

“Offences under the Electoral Law Act (Northern Ireland) 1962 (c.14 (N.I.))

National Security Bill (Fifth sitting)

Holly Lynch Excerpts

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Stephen McPartland]

As the right hon. Gentleman knows, we are reforming the first three Official Secrets Acts, but not the 1989 Act, with the Bill. We will write to him with the information to explain how that is going to work.

In summary, the aggravating factor provides another tool for prosecutors to deploy, and helps to future-proof the Bill by ensuring that our judicial system can respond to any evolving state threats and activity in the future.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to see you in the Chair, Ms Ali. I very much welcome your early judgment call on jacket wearing; we are all eternally grateful.

Clause 16, as the Minister outlined, inserts new section 69A into the sentencing code to provide a new aggravating factor for sentencing when the foreign power condition is met in relation to an offence. The court will make its determination on the basis of the usual information before it for the purposes of sentencing, which may include the evidence heard at trial or evidence heard at a Newton hearing following a guilty plea. If the court determines that the foreign power condition is met in relation to conduct that constitutes the offence, it must treat that as an aggravating factor when sentencing the offender and must state in open court that the offence is so aggravated.

We are introducing a measure that will mean that, if an individual is found guilty of an offence that is not outlined in the Bill, but the foreign power condition can be proven, a judge may aggravate their sentence. On Second Reading, the Home Secretary provided a serious recent example to highlight why she felt the measure was needed, and we very much recognise the merit in that.

However, I note that a sentence would be aggravated only up to the maximum available for the original offence. I have sought a legal opinion about whether there is a precedent for aggravating an offence beyond the maximum sentence where deemed appropriate. Although the judge ultimately has discretion to sentence beyond the sentencing guidelines, it is far from common practice and will be subject to appeal.

I want to work through the application of the measure. For example, if someone acting on behalf of a foreign state were to commit a section 18 assault against someone who was going to speak at an event against that Government as a means of preventing them from honouring that commitment, it might be possible to prosecute them under some of the new offences in the Bill. If that is not the case and they are prosecuted for the section 18 assault, the foreign power condition having been met and the sentence aggravated, it is still subject only to the maximum sentence for a section 18 assault. I feel that the weight of the very serious sentences in this Bill will not be felt by the perpetrator in that instance.

Will the Minister outline why we are not able to push the sentences under clauses 16, 17 and 18 further? Will he comment on whether the usual so-called early plea discount will be ruled out in cases where the foreign power condition is met?

Clause 17 introduces the measure for offences in Northern Ireland, and clause 18 makes a corresponding provision to the one in clause 16 for sentences to be aggravated where the foreign power condition is met for offences in Scotland. Clause 19 amends the Armed Forces Act 2006 to make corresponding provision for service courts considering the seriousness of a serious offence for the purposes of sentencing. The case for tougher sentencing is even stronger in those circumstances, given that people serving in the armed forces and acting on behalf of our nation potentially have a level of access to the UK security apparatus that others do not have. We recognise the seriousness and necessity of these measures, and fully support them, but will the Minister address the points I have raised?

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Ms Ali. I have one very short point. I am very supportive of these measures. Clause 18, as we have heard, relates to Scotland. As I understand it, it operates and is drafted similarly to other aggravations in Scottish criminal law. I just want to be absolutely sure that the Government are collaborating closely with the Scottish Government to ensure it fits with the schemes in Scottish criminal law. What discussions has he had with compatriots up there?

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In summary, the Government have reformed an existing tool, the utility of which has been independently recognised and provided for in its use in state threats investigations, while ensuring that it is subject to a range of modern and vital safeguards. I ask the Committee to support the inclusion of clause 20 and schedule 2 in the Bill, along with Government amendment 12.

[Holly Lynch]

I thank the Minister for his explanation. Clause 20 and schedule 2 deal with the power of entry, search and seizure in relation to the new offences created by part 1 of the Bill. There are a number of powers here that seem largely appropriate and proportionate for the reasons outlined by the Minister.

However, I will press the Minister on paragraphs 3 and 4 of part 1 in schedule 2, on the production orders relating to confidential material. These provisions set out the conditions that must be met in order for a constable to apply to a judge for a confidential material production order. I was listening carefully to what the Minister said on that. The person specified in that order then has to produce, within a specified period, any material that they have in their possession, custody or control.

The specified period is seven days. The clause says that it is seven days unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. Why is it seven days? Given the seriousness of some of the offences and the consequences of confidential material being in the hands of someone who should not have it—potentially to the benefit of a hostile state—that feels like quite a long period for such material to be able to be used against us. I would be grateful if the Minister explained the rationale for specifying the period as seven days.

My second point is that there is a lot going on in schedule 2, much as there is in schedule 3. While there are provisions for an ongoing review of the powers created by part 2 of the Bill, at clause 49, I think that part 1 should be reviewed by an independent reviewer to safeguard against any unintended consequences once the legislation is enacted. That is why the Opposition have tabled new clause 2; we will make the case for that provision when we reach the appropriate point.

[Stuart C. McDonald]

I broadly welcome the provisions. As the hon. Member for Halifax said, they are extensive powers, so I am very sympathetic to her suggestion that they should be subject to review in the same way that other parts of the Bill are. I appreciate that those extensive powers are modelled on the equivalent provisions in terrorism legislation. I have no problem with those provisions being borrowed from such legislation, but they need to be justified in their own context. The Minister has usefully set out why exactly they are needed here. The SNP is broadly supportive of that.

I have a couple of questions. I am not familiar with the idea of allowing police officers or sheriffs to order a person to explain material that is seized. I see that is borrowed from terrorism legislation. However, I wonder how that works alongside the right not to require someone to self-incriminate, particularly when there is an emergency power for police officers to require an explanation—if that is not complied with, it can be a criminal offence. I am interested in how that works; I assume it works in the context of the terrorism legislation, but it would be interesting to hear a bit more about that. I am also interested in the idea of what a “great emergency” amounts to. That is not a concept that I have seen before. Are we talking about threat to life and limb, essentially? I am not sure about that.

My only other point is that how the provisions on search and seizure apply depends largely on how the foreign power condition operates. I said at the outset of our debates on clause 1 that I have some difficulties with how broadly some aspects of the term were drawn. For example, the non-governmental organisations I referred to during that debate and journalists working for a foreign state broadcaster can be brought within the foreign power condition, meaning that they are subject to the search-and-seizure powers. We can probably come back to that in the context of clause 1, but it is relevant to our discussion. It could be those people who are searched or who have documents seized under the schedule, including confidential journalistic material.

Those are a couple of points to emphasise, but we broadly support what is in the clause and the schedule.

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[Holly Lynch]

The clause provides a power of arrest without warrant and includes provisions about subsequent detention. The explanatory note explains that the provisions are modelled on those in section 41 of and schedule 7 to the Terrorism Act 2000, as the Minister said, which give police officers the power to arrest persons suspected of terrorism-related offences without a warrant.

We recognise the importance of granting law enforcement officers this power. The sense within policing is that it will provide the police a window in which to work, in order to undertake the necessary analysis and investigative work needed to confirm if an act of espionage or sabotage has been committed. Once a more substantive offence is established, the person in question must then be arrested for that offence, which would trigger the further relevant detention powers.

I have a query from within law enforcement, which relates to subsection (9). If the warrant for further detention is refused, a person can still be detained in hospital or if they are removed to hospital because they needed medical treatment. I am not aware that any such provision to continue to detain someone on the basis they need medical treatment when the application has been refused exists within any other detention powers. I would be grateful if the Minister could clarify that point.

[Stuart C. McDonald]

The provisions are for very significant powers of arrest and people can remain under arrest for a quite striking period of time, so we should be cautious. The key issue for me is subsection (1), because arrest without a warrant is justified not by the suspicion of a specific event set out in the Bill, but by involvement in foreign power threat activity. Will the Minister say a little more about why that decision has been made?

We will obviously get to clause 26 and the definition of “foreign power threat activity” soon, but it is a much broader concept than being under suspicion of one of the particular offences in the Bill. It could be somebody providing assistance or support to individuals, or known to be involved in certain types of conduct. Why have these powers of arrest without warrant been drafted differently compared with the powers on search and seizure? The search-and-seizure powers relate to specific offences under the Bill. The power of arrest without warrant applies to a much broader category of people. Given the significance of the powers, and how long people can be detained for, it is important that we push the Minister a little bit further on why the Bill has been drafted in this way.

[Stephen McPartland]

I am grateful for the contributions and the general support. On safeguards, the powers mirror the powers in the Terrorism Act 2000, which are very important and have proven to be very disruptive, as well as useful and effective in keeping the country safe. It is critical that the police have strong powers of arrest and I outlined the reasons for that. Currently, a person can be detained for 24 hours. These provisions allow a detention for 48 hours, which would have to be reviewed periodically after 12 hours, so there are safeguards. The provisions mirror the 2000 Act, which has proven very effective and very disruptive.

On the question asked by the hon. Member for Halifax, the detention clock stops if the individual goes to hospital. If a warrant is refused, they can only be detained for 48 hours. These may appear to be very significant powers, but a person is not going to be held for a huge number of days.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Schedule 3

Detention Under Section 21

[Holly Lynch]

I beg to move amendment 45, in schedule 3, page 70, line 27, at end insert—

“(1A) A place designated by the Secretary of State under sub-paragraph (1) must be subject to an independent inspection by—

(a) Her Majesty’s Inspectorate of Constabulary, or

(b) a different person or body appointed by the Secretary of State.”

I will speak to amendment 45, tabled in my name and those of my hon. Friend the Member for Birmingham, Yardley and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper). I will also address the wider schedule 3 powers.

The amendment reflects the place of detention powers at the start of schedule 3, which gives the Secretary of State the power to designate places at which persons may be detained under section 21. The Minister’s predecessor was asked repeatedly whether he could clarify what types of buildings could be designated places of detention beyond police stations on Second Reading. In response, he said:

“I do not think that this is an appropriate forum in which to discuss the detail of such measures, but I hope I can reassure my hon. Friend on that particular point. As I have said, this is to allow for cases in which such capacity is required owing to operational need, and it cannot be outside the United Kingdom.”—[Official Report, 6 June 2022; Vol. 715, c. 636.]

I am still not convinced about the provisions based on that response.

[Maria Eagle (Garston and Halewood) (Lab)]

The provisions in paragraph 1(1) of schedule 3 give the Secretary of State the power to designate places at which persons may be detained under section 21. However, sub-paragraph (2) states that in the entire schedule a reference to a police station includes a reference to any place that the Secretary of State has designated. That means that as long as the Secretary of State says, “I designate this place”, any building in the UK—it does not even say “building”—or any place can be a police station. Can that possibly be adequate and correct?

[Holly Lynch]

My hon. Friend makes an incredibly important point. I was just about to say that operational need provided a reason for the appalling asylum accommodation provided by the Home Office during the pandemic, and we now know that the official guidance was ignored. That leads to a great deal of concern about the ability to designate any type of building as a place suitable to detain somebody.

To introduce some safeguards, we propose an amendment whereby any such place designated as a place of detention must be subject to an inspection regime. We have given the Government some discretion to determine who the most appropriate body to do that would be, given the absence of any steer at all, as my hon. Friend has just said, about what type of buildings might be used. Her Majesty’s inspectorate of constabulary and fire and rescue might be the most obvious choice. I hope the Minister will reflect on that and adopt our sensible and measured proposal.

Schedule 3 is massive—32 pages of powers. To consider the implications of it all once enacted is an enormous undertaking. That is why I come back to this principle when making the case for new clause 2.

[The Chair]

Order. We will come on to schedule 3.

--- Later in debate ---

[Holly Lynch]

Of course, Ms Ali—I will wait until I am invited to do that.

[Mr Jones]

It is a pleasure to serve under your chairship, Ms Ali. I have some sympathy with the amendment as I am always against things that give Ministers or the Executive broad powers. As my hon. Friend the Member for Halifax has already said, the powers seem to be unlimited. We are talking about national security and the confidence that we should have in our agencies to act in our interests, with the best of intentions and proper oversight, so the amendment is important. What does “any site in the UK” mean? My hon. Friend said that that was quite a broad power, and I want to ask about sites in the UK that are not under the control of the UK Government, such as US sites. Could Mildenhall airbase, a US airbase in the UK, be designated as one of these sites? I raise that because it limits UK authorities’ oversight and jurisdiction.

People may ask why that is important, but I am very conscious that we should always ensure that civil servants, Ministers and others have historical knowledge and take into account what happened in the past. I served on the Intelligence and Security Committee when we did our inquiry into detainee mistreatment and rendition in 2018. I have to say, it did not make for pretty reading. We did not shy away from the facts, and the actions of our agencies and certain Ministers—including some Ministers in the Government I served in—did not come out of that report very well. Guidance and regulations were put in place to ensure that did not happen again. I would like some clarity about whether such bases could be designated under this measure? Some of those sites could potentially have been used for what the ISC report on rendition highlights. They certainly were abroad, but this is about sites that are actually in the UK.

--- Later in debate ---

[Stephen McPartland]

I hear what the right hon. Gentleman says. If the hon. Member for Halifax is kind enough to withdraw the amendment, I commit to considering it further. I will look to provide further clarity in the legislation.

[Holly Lynch]

I am very grateful to the Minister for the spirit in which he has responded, taking our concerns about this element of the Bill seriously. I am reassured by his commitment, that he understands what we are trying to achieve with the amendment and that he will seek the best way to deliver that in the Bill.

Slightly separately, the clarity and detail that he has been able to provide about the minimum standards for the places of detention were welcome. In addition to putting that on the record today, however, I think that he has understood the point made by my hon. Friend the Member for Garston and Halewood on the need for it to be put on the face of the Bill and that he will continue to have a positive personal impact on some of the detail of the provisions. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stephen McPartland]

I beg to move amendment 13, in schedule 3, page 81, line 26, leave out sub-paragraph (3) and insert—

“(3) In any other case, paragraph 19 material must be destroyed unless it is retained under any power conferred by paragraphs 20 or 21.”

This amendment and Amendments 15, 18 and 22 make provision for the indefinite retention of fingerprints, data and other samples taken from a person who is or previously has been convicted of a specified offence.

--- Later in debate ---

Finally, amendments 20, 21, 34 and 35 amend the definition of police force for the biometric provisions to remove reference to the various armed forces police forces. Members will be glad to know that I have come to the end of one of the more technical groupings of amendments to the Bill. I ask the Committee to support the amendments.

[Holly Lynch]

Having heard the Minister’s detailed explanation for this group of Government amendments, I will come back to the issues in the slightly wider discussion on schedule 3, which is the next proceeding.

[Stuart C. McDonald]

I do not need to say much more. The Minister understands from my intervention that I have some reservations about the lifelong retention of the materials. I shall give that further thought. Other parts of the relevant amendment are perfectly sensible, so I will not oppose the amendment at this stage. Further thought should be given to it, though. The Government have explained a number of times how they are copying what is in the counter-terrorism legislation, which is fine and understandable but does not in of it itself justify the measures in this sphere of behaviour. I will look at the matter again. I want to put on the record that I am slightly uneasy about that type of provision.

[Stephen McPartland]

I am grateful for the support for the amendments.

Amendment 13 agreed to.

Amendments made: 14, in schedule 3, page 82, line 22, leave out “or 42”.

This amendment removes reference to paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 from a list of provisions under which fingerprints, data and other samples may be taken. Reference to paragraph 42 is not needed because its contents are already covered by paragraph (e).

Amendment 15, in schedule 3, page 82, line 26, leave out sub-paragraph (2) and insert—

“(2) Paragraph 19 material may be retained indefinitely if—

(a) the person has previously been convicted—

(i) of a recordable offence (other than a single exempt conviction), or

(ii) in Scotland, of an offence which is punishable by imprisonment, or

(b) the person is so convicted before the end of the period within which the material may be retained by virtue of this paragraph.

(2A) In sub-paragraph (2)—

(a) the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—

(i) a recordable offence under the law of England and Wales if done there, or

(ii) a recordable offence under the law of Northern Ireland if done there,

(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);

(b) the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).

(2B) Paragraph 19 material may be retained until the end of the retention period specified in sub-paragraph (3) if—

(a) the person has no previous convictions, or

(b) the person has only one exempt conviction.”

See Amendment 13.

Amendment 16, in schedule 3, page 83, line 37, leave out “and Northern Ireland”.

This amendment and Amendment 17 clarify the identity of the specified chief officer of police in Northern Ireland.

Amendment 17, in schedule 3, page 84, line 5, at end insert “, and

(c) the Chief Constable of the Police Service of Northern Ireland, where—

(i) the person from whom the material was taken resides in Northern Ireland, or

(ii) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.”

See Amendment 16.

Amendment 18 in schedule 3, page 84, line 5, at end insert—

“20A (1) For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if—

(a) in relation to a recordable offence in England and Wales or Northern Ireland—

(i) the person has been given a caution or youth caution in respect of the offence which, at the time of the caution, the person has admitted,

(ii) the person has been found not guilty of the offence by reason of insanity, or

(iii) the person has been found to be under a disability and to have done the act charged in respect of the offence,

(b) the person, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—

(i) a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that Act,

(iii) a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(c) the person, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the person’s insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,

(d) a finding in respect of the person has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,

(e) the person, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the person is liable to pay by virtue of section 131(5) of that Act, or

(f) the person, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.

(2) Paragraph 20 and this paragraph, so far as they relate to persons convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).

(3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 or 101A of the Protection of Freedoms Act 2012.

(4) For the purposes of paragraph 20—

(a) a person has no previous convictions if the person has not previously been convicted—

(i) in England and Wales or Northern Ireland of a recordable offence, or

(ii) in Scotland of an offence which is punishable by imprisonment, and

(b) if the person has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the person was under 18 years of age.

(5) In sub-paragraph (4) ‘qualifying offence’—

(a) in relation to a conviction in respect of a recordable offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in respect of a recordable offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(6) For the purposes of sub-paragraph (4)—

(a) a person is to be treated as having previously been convicted in England and Wales of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);

(b) a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);

(c) a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);

(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).

(7) For the purposes of paragraph 20 and this paragraph—

(a) ‘offence’, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;

(b) a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—

(i) a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or

(ii) such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.

(8) If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 20 whether the person has been convicted of only one offence.”

See Amendment 13.

Amendment 19, in schedule 3, page 84, line 21, at end insert—

“(ca) the Chief Constable of the Ministry of Defence Police,

(cb) the Chief Constable of the British Transport Police Force, or”.

This amendment enables the Chief Constables of the Ministry of Defence Police and the British Transport Police Force to make a national security determination in relation to fingerprints, data and other samples.

Amendment 20, in schedule 3, page 89, line 36, leave out paragraphs (j) to (l).

This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 21, in schedule 3, page 90, leave out lines 1 to 3.

This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 22, in schedule 3, page 90, line 3, at end insert—

“‘recordable offence’ —

(a) in relation to a conviction in England and Wales, has the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in Northern Ireland, has the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));”

See Amendment 13.

Amendment 23, in schedule 3, page 90, leave out lines 6 to 24 and insert—

“‘responsible chief officer of police’ means—

(a) in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police, or a DNA profile derived from a sample so taken, the Chief Constable of the Ministry of Defence Police;

(b) in relation to fingerprints or samples taken by a constable of the British Transport Police Force, or a DNA profile derived from a sample so taken, the Chief Constable of the British Transport Police Force;

(c) otherwise—

(i) in relation to fingerprints or samples taken in England or Wales, or a DNA profile derived from a sample so taken, the chief officer of police for the relevant police area;

(ii) in relation to relevant physical data or samples taken or provided in Scotland, or a DNA profile derived from a sample so taken, the chief constable of the Police Service of Scotland;

(iii) in relation to fingerprints or samples taken in Northern Ireland, or a DNA profile derived from a sample so taken, the Chief Constable of the Police Service of Northern Ireland.”

This amendment and Amendment 24 make provision identifying the responsible chief officer of police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.

Amendment 24, in schedule 3, page 90, line 24, at end insert—

“(2) In the definition of ‘responsible chief officer of police’ in sub-paragraph (1), in paragraph (c)(i), ‘relevant police area’ means the police area—

(a) in which the material concerned was taken, or

(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken.”—(Stephen McPartland.)

See Amendment 23.

Question proposed, That schedule 3, as amended, be the Third schedule to the Bill.

[Holly Lynch]

I want to conclude some earlier remarks that I made as part of the discussion on amendment 45 and the discussion on some of the Government amendments. There is an awful lot going on in schedule 3. I repeat the point: it is massive—it is 32 pages of powers. An ongoing consideration of the implications of all those powers is quite a significant undertaking. That is why I come back to making the case for new clause 2, which would ensure that part 1 of the Bill is subject to the same ongoing scrutiny as part 2, under clause 49, and as counter-terrorism legislation, which a great deal of this Bill is already based on.

We have talked about part 1 of the schedule; the delay in the exercise of rights under part 2 should also be kept under review, alongside the points about the retention of biometrics that were made by right hon. and hon. Members. Even if the Minister cannot share with the Committee some justification for all the measures today, I very much hope he will discuss that further with the Intelligence and Security Committee in the deliberations on the Bill that he has promised to have with the ISC.

[Stephen McPartland]

I am grateful to the hon. Lady for her support. I know that we will debate things later on. As I have said, we are currently in discussions about how we can securely provide further information to help to provide further clarity. I cannot say more than that.

Question put and agreed to.

Schedule 3, as amended, accordingly agreed to.

Clause 22

Border security

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

--- Later in debate ---

[Stephen McPartland]

I will take that idea away and consider it. We do not want to enable somebody at the border to say that something is confidential material so that the police cannot look at it for up to six weeks. That would just be the easiest defence. We are dealing with incredibly sophisticated experts and they will know what to say to ensure that the material will be held in abeyance.

The Government are only amending the safeguards for confidential business material and will not change the authorisation safeguard for other material within the definition of protected material or confidential journalistic material, for which judicial authorisation is a proportionate safeguard. I am sure Members agree that it is only right that the security services should be able to use critical information in real time during a schedule 3 examination to address live national security risks posed to the UK. I assure Members that this essential amendment to schedule 3 to the 2019 Act will strengthen and streamline state threats investigations to disrupt and deter hostile state activity.

[Holly Lynch]

The drafting of clause 22 is complicated and I have had to speak to a number of experts to try to unravel it. It amends schedule 3 to the Counter-Terrorism and Border Security Act 2019, as the Minister outlined. In essence, it allows examining officers a right to confidential material that would currently require the authorisation of the Investigatory Powers Commissioner. I am grateful to the commissioner, Sir Brian Leveson, in his capacity as the independent reviewer of schedule 3, and his office for their insight on the clause.

If I have understood it correctly—I am sure the Minister will correct me if I have not—the clause amends schedule 3 to the 2019 Act to reflect the position of schedule 7 to the Terrorism Act 2000. Schedule 3 subjects are far more likely to possess confidential business records than those stopped under schedule 7. That means the requirement for judicial approval is engaged in the majority of schedule 3 stops. It is therefore important to assess whether the requirement for a judicial authorisation in such cases is necessary and proportionate, taking into account both the sensitivity of the category of protected material and the purpose of the statute specifically to counter hostile state activity.

The Investigatory Powers Commissioner’s Office said

“We are not aware of any other statute that requires judicial authorisation for the retention of confidential business records acquired direct from a person in a public setting such as a port”.

The closest is perhaps schedule 1 to the Police and Criminal Evidence Act 1984, commonly known as PACE, although this is restricted to material on private premises. There is no requirement in PACE to seek judicial authorisation to seize or retain confidential business material found during the search of a person in a public place, or if such material is unexpectedly encountered on private premises.

Confidential business records are protected in PACE as “special procedure material” because they have a degree of special sensitivity that Parliament has decided merits certain access requirements in the context of criminal investigations. The Investigatory Powers Act 2016 does not include any similar requirement for judicial authorisation to acquire confidential business records using covert investigatory powers. The sensitivity of this category of material is not the same as that of legally privileged or journalistic material, the safeguards for which will not be affected by the proposed amendment to schedule 3—I hope the Minister can confirm that that is the case.

The statutory purposes in schedule 3 go well beyond criminal investigations and include national security or protecting life and limb. On that basis, it seems unlikely that the interests of the business, trade or profession would outweigh the interests of national security in any circumstances, or that judicial authorisation should be necessary for the retention and use of confidential business records in circumstances that might prevent death or serious injury.

Having considered those points in the round, the Investigatory Powers Commissioner has concluded that the Home Office’s proposals to replace judicial authorisation for confidential business records with one of internal authorisation from a senior officer strike the right balance and align the definition of confidential material with that of the 2016 Act. Inevitably, that view has very much shaped our judgement on clause 22, but I suggest that it is another area where keeping the provisions under review to mitigate any unintended consequences is the responsible thing to do.

Let me turn to who has the powers to make and retain copies of confidential material. Page 35 of the explanatory notes outline that “examining officers” have that power. However, schedule 7 to the 2000 Act defines an examining officer as a constable, immigration officer or a customs officer. In paragraph (j) of the policy background section of the explanatory notes, it states that part 1 amends schedule 3 to the Counter-Terrorism and Border Security Act 2019

“to allow counter-terrorism police officers to retain copies of confidential business material…without the authorisation of the Investigatory Powers Commissioner. This will allow counter-terrorism police to progress operations and investigations into state threats…at the required pace and reflects the position in schedule 7 to the Terrorism Act 2000”.

Paragraph 17 of schedule 3 to the 2019 Act, on the power to make and retain copies, confirms that the examining officer, only when they are “a constable”, can retain copies when necessary and potentially needed as evidence in criminal proceedings. The references to various different roles in the different supporting documents to the Bill make it a bit of a mess. I was listening carefully to the Minister, but I would like further clarity about who has the powers. Given that we have references to examining officers—who can have different roles—to counter-terrorism police specifically and to an examining officer who can be a constable, I wonder whether the Minister can tidy it up for us on the record and be explicit about who has the powers at the border.

[Stephen McPartland]

My understanding is that the amendment of the authorisation safeguards to access confidential business material in schedule 3 brings it completely into line with other policing powers. It is not likely that access to confidential business material would be subject to a higher level of safeguarding where there is already consistent precedent set by PACE 1984, the IPA 2016 and schedule 7 to the 2000 Act. As we have said, it does not affect legal, profession or journalistic material, and the provisions are reviewed by the Investigatory Powers Commissioner as part of their statutory function. Only trained counter-terrorism officers will be able to use the powers. I hope that provides the clarity that the hon. Lady requires.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

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

National Security Bill (Sixth sitting)

Holly Lynch Excerpts

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Stephen McPartland]

The right hon. Gentleman will have the opportunity to make his own speech, and I will listen.

Let me also be clear that clause 23 will not enable activity by individuals who, acting outside the proper functions of their organisations, contribute to criminal activity by others or commit criminal offences themselves. We will retain the ability to prosecute anyone for other offences should their behaviour in support of international partners amount to a criminal offence. Further, it will not remove the ability to challenge the UK intelligence community or armed forces on their activities through judicial review, civil damages claims, or a complaint to the Investigatory Powers Tribunal in relation to the use of intrusive powers.

To conclude, clause 23 is really about supporting UKIC and armed forces officers, who we ask to undertake vital work on our behalf, by ensuring that when they work with our partners in good faith, according to wider domestic and international law, and in support of vital national security aims to keep this country safe, they do not risk personal criminal liability for any actions of that partner state. Responsibility for any action that we cannot support should surely sit at an institutional level, which is what will be the case under clause 23.

[Holly Lynch (Halifax) (Lab)]

It will come as no surprise to the Minister—we have had the opportunity to discuss this—that we are extremely concerned about clause 23, which amends the Serious Crime Act 2007. We have had the opportunity to discuss this privately with the Minister and his predecessor, and with the UK intelligence community directly, and I am minded of just how much detail of those conversations we might want to put on the record. The clause was a big focus for Members from across the House on Second Reading. As the Minister knows, crucially, it did not have the support of members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community.

The Labour Party will always work with the intelligence services to find solutions to any barriers that they face in undertaking their invaluable work and keeping the UK safe. As things stand, we have been unable to get an operational understanding of exactly what is broken and requires fixing. I have heard directly from the security services about why they believe they need clause 23—the Minister has sought to outline that again in his contribution. Schedule 4 to the Serious Crime Act allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community. An offence can arise where support—for example, intelligence sharing—provided in good faith later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact that requires a resolution.

[Mr Jones]

My hon. Friend is outlining the protections. SIS and GCHQ staff also have protection under section 7 of the Intelligence Services Act 1994, where there is ministerial authorisation. Like her, I struggle to understand what incidents there could be of an individual being liable, if they were covered by these authorisations and the Act that she refers to.

[Holly Lynch]

My hon. Friend makes an important point, which I will explore in more detail in a second. I go back to the point that the security services have conveyed to us that their caution is having an operational impact, which requires a resolution. We are sympathetic to that. We recognise that a junior member of staff facing that burden of potential liability when carrying out their proper functions under instruction does not feel right. However, I look to the Minister to find a way through the matter that does not involve what can feel somewhat like a gold-plating of exemptions for the security services, which stands to entirely erode appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners. As the Minister knows, there is an existing reasonableness defence in section 50 of the Serious Crime Act, which recognises that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.

[Maria Eagle]

My hon. Friend is right to refer to the defences that already exist because to agree with the clause, we would need to see that the existing offences and defences are not working. There does not seem to be much evidence of that. Section 53 of the Serious Crime Act sets out the factors to be considered in determining whether it is reasonable for a person to act as he did. That includes any purpose or authority he claims to have been acting under. An individual working for our intelligence service has clearly got extensive protection under that existing provision. Does my hon. Friend agree?

[Holly Lynch]

I am grateful to my hon. Friend. As a lawyer, she has a great deal of experience navigating some of this legislation, and she makes a powerful point about the reasonableness defence. In addition, a prosecution would have to be deemed to be in the public interest.

[Mr Jones]

This morning we saw the Minister use reasonableness in clause 20, but he is not prepared to use it here. Does my hon. Friend agree that reasonableness in law is a well-established notion? Does she find it odd that the Minister relies on it in one clause, but in this one he prefers to say that it will somehow not work?

[Holly Lynch]

My hon. Friend makes the point that, while we will get into the detail of reasonableness and the concern that it is potentially untested in these circumstances, it is a well-established principle across British law. Again, that certainly supports the robustness of the existing defences around reasonableness. On further probing of these defences, and this is exactly his point, it seems that it is not the case that the reasonableness defence is not strong enough, rather that it is untested in these specific circumstances, as no such case has been brought against the intelligence community. We do not believe that that is a strong enough case for the proposals in clause 23. We hope that properly authorised activity to protect national security would and should be interpreted as being reasonable.

I am not currently satisfied, and neither are members of the Intelligence and Security Committee, who we will hear from shortly, that there are grounds to support clause 23 as drafted. I have taken further legal advice, including from a QC with a great deal of experience of the Investigatory Powers Tribunal. Can the Minister answer the following questions? First, as has been said by the hon. Member for Garston and Halewood, given that we already have section 7 of the Intelligence Services Act—this relates to the serious end of some of what we are talking about here—which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad, why do we need these changes?

Importantly, the existing scheme requires the UK intelligence community to secure permission from the Secretary of State in advance, requiring their personal approval, with safeguards within the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge.

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[Stuart C. McDonald]

We now come to two of the most important concepts in the Bill: the foreign power condition and the meaning of “foreign power.” Proving that the foreign power condition has been met is crucial to establishing many of the serious criminal offences for which we are legislating in this Bill, and all sorts of consequences flow from it in the powers to seize and search. It is vital that we get clauses 24 and 25 absolutely correct.

On the whole, the concepts are broadly in the right area, particularly in clause 24. The concept includes an agent acting on behalf of a foreign power, and with knowledge, or reasonable knowledge, that that is the case. The idea of “ought reasonably to know” being sufficient to make out a connection is perhaps a concern, but I understand why it is required for the legislation to work. I look forward to hearing more from the Minister on the thinking behind it.

To cut to the chase, the Committee will recall that, thanks to a briefing from Article 19 on clause 1, I raised the potential problem that the foreign power condition could be attached to certain unintended groups, and I highlighted two groups in particular: non-governmental organisations that receive some funding from foreign powers for perfectly good and positive reasons, and I gave an example of NGOs that fall within that bracket; and journalists who work for state broadcasters, including in countries that are our very close allies. These two groups are at risk of being caught up in the Bill because the foreign power condition is expressly met when conduct is

“carried out with the financial or other assistance of a foreign power”.

The Minister set out three protections during our consideration of clause 1: the foreign power condition itself; the discretion of the Attorney General; and the public interest test applied by the Crown Prosecution Service. Several members of the Committee spoke about why the AG’s oversight and the CPS’s discretion are insufficient. We had a debate about the chilling effect, a concept that we have just been discussing, and the fact that that would essentially leave NGOs and journalists to make decisions about whether to publish information or not based only on the very vaguest of ideas that the CPS or the AG might come to their rescue. That is not really protection at all.

As for the third protection—the foreign power condition —as far as I recall, the Minister did not dispute or expressly accept that the foreign power condition would be met in these cases. Does the Minister accept that the conduct of those NGOs and journalists could meet the foreign power condition, simply because of what they do? That is the most important question I will ask him in this debate.

Our amendment tries to stop groups being caught up in the provisions of the Bill as a result of simply receiving funding from a foreign power, when that funding has been put to perfectly legitimate and reasonable uses. The amendment requires there to be a connection between the funding and the conduct that is being complained about. For example, if the US State Department funds an NGO for human rights research, completely unrelated conduct, in particular the publication of “protected information”, would not be treated as a foreign power activity or espionage unless it was specifically linked to that funding. I accept that my amendment may not be perfect, and I can see there would be problems with it, but I think there has to be an acceptance that the clause as it stands is not perfect and there has to be protection for NGOs and journalists.

I have another concern about clause 24, particularly subsection (5) and the interaction between subsection (5) and (6). The idea of someone being brought within the ambit of espionage legislation on the basis that their act is motivated by an attempt to benefit a foreign power, even an unknown foreign power, and that is all—none of the other factors in clause 24(2)—seems dangerously liable to be able to attach itself to behaviour to which it should not be attached. Behaviour that is motivated by trying to help people in a foreign country could suddenly take on a new angle and be seen as helping a foreign power.

I will give a final example of what I am trying to get at here, which is basically whistleblowing. What if a person working for an international company here discloses a trade secret of that company to a regulator in an allied country, because the product that that company supplies there is a dangerous breach of that other country’s regulations? It seems to me that the drafting of the foreign power condition confuses whistleblowing with some of the espionage offences. Have we drawn the foreign power condition too broadly?

In relation to clause 25, on Second Reading I wondered whether the definition of foreign power was too narrow and might not cover enough of the damaging actors who engage in some of the behaviours we are so concerned about. However, the key point is that an actor can form part of an indirect relationship between the conduct of the foreign power under clause 26.

I will close my remarks there. Does the Minister accept that some of these examples are caught by the foreign power condition, in particular NGOs, journalists working for a foreign state broadcaster and whistleblowers who reveal a trade secret to a regulator working overseas? Are they caught by the foreign power condition? If so, surely we must change the drafting of the Bill.

[Holly Lynch]

I will speak to clauses 24 and 25 and, having heard the contribution from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, about his amendment 54.

Clause 24 provides for the foreign power condition that is fundamental to almost all the new offences created by the Bill. I appreciate that the Minister has confirmed that we will see the detail of a foreign interference registration scheme before we return to Committee in September, but it will be particularly interesting to see how the provisions in clause 24 interact with a registration scheme, and what an asset that stands to be if it is done properly.

Clause 24(1) provides that the condition is met if a person’s conduct or a course of conduct is carried out for or on behalf of, or with the intention to benefit, a foreign power. In addition, for the condition to be met, the person must know, or reasonably ought to know, that the conduct has that relationship to the foreign power, which I think is clear enough.

Subsection (2) sets out a welcome but non-exhaustive list of different types of relationship between the foreign power and the person engaging in the conduct that would result in a person being considered to be acting for or on behalf of the foreign power.

Under this clause, conduct is deemed to be carried out for or on behalf of a foreign power if it is instigated by a foreign power, it is directed or controlled by a foreign power, it is carried out with financial or other assistance from a foreign power, or it is carried out in collaboration with or with the agreement of a foreign power. It strikes me that thousands of people in the UK could meet all the foreign power stipulations in subsection (2) without ever engaging in any criminality—for example, if they work for a legitimate state-owned company, such as an airline operating out of the UK, or in a foreign embassy. I am keen to see the detail of the registration scheme, so that we have transparency and clear lines about what is welcome and entirely appropriate conduct on behalf of a foreign power and what is not.

Subsection (6) states that is not necessary to identify the particular foreign power that the person intends to benefit. That provision is intended to cover when a person attempts to help a foreign power, but has not yet determined the particular foreign power. I can see how this part of the clause rightly captures the conduct of someone motivated by financial gain, who seeks to sell information or intellectual property to the highest bidder, or perhaps by a desire to cause harm to the UK as a result of a grievance.

For the reasons I have outlined, I imagine that we will come back to clause 24 when debating further parts of the Bill. It would have been advantageous to consider the clause alongside the detail of the foreign influence registration scheme. We will have to undertake that separately, but we recognise that clause 24 is fundamental to this legislation.

Clause 25 defines a foreign power for the purpose of clause 24 and sets out the persons and bodies that comprise a foreign power. We welcome the much-needed update and clarity of what constitutes a foreign power for the functioning of clause 24 and the new offences created by the Bill. I note that the Law Commission’s report, “Protection of Official Data”, made a clear case for replacing “enemy” with “foreign power” and looked to the Canadian Security of Information Act 2001 and the US Congress’s Espionage Statutes Modernisation Bill, which was introduced in 2010, as starting points.

The Official Secrets Act 1911 provides that it is an offence for a person to make or obtain

“any sketch, plan, model, or note”

or

“any secret official code word, or pass word…or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.

The Law Commission felt that as the term had been drafted with enemy states in mind, it was unclear whether a court would construe “enemy” broadly enough to encompass non-state actors, such as an international terrorist group. It was further concerned that the inclusion of the term “enemy” had the potential to inhibit the ability to prosecute those who commit espionage. We have already heard quotes from Sir Alex Younger’s testimony last Thursday. In response to a question about how threats to the UK have changed, he said:

“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q21.]

I therefore welcome the change from enemy to foreign power to ensure that we can secure prosecutions against the right people.

That said, concerns were raised in submissions to the Law Commission’s consultation and I wonder if the Minister can respond to those. Guardian News and Media gave the following example:

“If a journalist obtains information that a nuclear defence installation is unsafe, that concerns have been reported to the appropriate authorities, but have been discounted, and the journalist then proceeds to investigate whether the information is true, they should not be placed at risk of prosecution. Under the existing wording of section 1 OSA, the ‘of use to the enemy’ requirement would it is submitted make such a prosecution unlikely, however if that wording were changed to a foreign power, and a foreign state-owned institution was thinking of bidding to decommission the plant, this could catch the journalist. Such activity by a journalist should not be considered to be espionage.”

Again, it would have been advantageous to consider this clause alongside the foreign influence registration scheme, which will presumably be clear about who needs to register and why, aligned with subsections (1) and (2) of clause 25, but I hope that the Minister can respond to the concerns raised in that example.

[Stephen McPartland]

We have already spoken in some detail about the foreign power condition, but I will now specifically address that condition and the meaning of “foreign power”. In doing so, I hope to cover some residual concerns from our first day in Committee and some concerns that I have heard today.

Throughout the Committee’s sittings so far, I have tried to demonstrate that I am listening and am trying to work with colleagues across party lines to get to a position in which we are providing what the United Kingdom’s intelligence community needs and are comfortable that we have scrutinised the Bill. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may be reassured when I get to the end of my speech, just as the hon. Member for Halifax was reassured about her amendment earlier.

National Security Bill (Seventh sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 19th July 2022 Public Bill Committees

[The Chair]

The learned Clerk also agrees that it should read “section 26”. We are most grateful to the hon. Gentleman for pointing that out.

Question put and agreed to.

Clause 27 accordingly ordered to stand part of the Bill.

Clause 28

Offences by bodies corporate etc

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

[Holly Lynch (Halifax) (Lab)]

Clause 28 deals with offences committed by bodies corporate. It is a significant clause. I imagine that this legislative area will continue to need to evolve as threats continue to emerge. The clause asserts that where a corporate body commits an offence under part 1 of the Bill

“the officer, as well as the body, is guilty of the offence”.

Finding the right balance here will not be straightforward, but this will become a key battleground, as the Government acknowledged with the National Security and Investment Act 2021.

In its report, the Law Commission outlined that classified evidence, which it was considering, could be explained using the following hypothetical example. P, an IT services company headquartered in a foreign state, has a managed services contract for a large Department. As part of that contract, P creates back-ups in the UK of the Department’s corporate email and file storage system. P is compelled under the foreign state’s national security legislation to share that information with the foreign state’s intelligence services, which use it to target UK interests. Worryingly, that will not be an uncommon scenario; we see such examples regularly in the UK press, and a range of stakeholders need to be alive to the risks. I am afraid to say that the Government have been too slow to respond.

In December 2020, the US Department of Homeland Security issued a data security business advisory, which

“describes the data-related risks American businesses face as a result of the actions of the People’s Republic of China (PRC) and outlines steps that businesses can take to mitigate these risks. Businesses expose themselves and their customers to heightened risk when they share sensitive data with firms located in the PRC, or use equipment and software developed by firms with an ownership nexus in the PRC, as well as with firms that have PRC citizens in key leadership and security-focused roles…Due to PRC legal regimes and known PRC data collection practices, this is particularly true for data service providers and data infrastructure.”

The advisory was issued as a result of several new laws passed in China in recent years—not least the national intelligence law of 2017, which compels all PRC firms and entities to support, assist and co-operate with PRC intelligence services, creating a legal obligation for those entities to turn over data collected abroad and domestically to the PRC.

A UK employee working for a Chinese company will need really robust legislative support in pushing back against the obligations placed upon Chinese businesses by those new laws under the Chinese Communist party. For that reason, we welcome clause 28, and believe that the provisions are sufficiently broad to include anyone in a company who may commit an offence under part 1 of the Bill, and to provide clarity in this space, with a need to consider employees who stand to find themselves in a difficult position due to the Chinese legislative framework.

Subsection (5) will allow the Secretary of State to make regulations to improve the clause through secondary legislation. I have said that I recognise that legislation will need to be dynamic if it is to be effective, but any such regulations should be laid under the affirmative procedure, and must be debated and actively approved by both Houses of Parliament. I hope the Minister will confirm that that will be the case.

[Stephen McPartland]

The clause provides that where a body commits an offence under part 1 of the Bill

“the officer, as well as the body, is guilty of the offence”

if it is attributable to the officer’s consent, connivance or neglect. The provision is based on a similar one in the Official Secrets Act 1911. For example, where a body commits an espionage offence of obtaining protected information under the direct guidance of the head of the body, both the body and its head would be guilty of the offence. Clause 28 mirrors the provisions found in section 36 in part 3 of the National Security and Investment Act 2021, which makes suitable provision for when an offence under that part is committed by a body corporate.

It is worth noting that in a similar provision in the 1911 Act, a director would automatically be held liable unless they could prove that they did not consent or were unaware. Rightly, the provisions move beyond that burden of proof: the prosecution must now demonstrate beyond reasonable doubt that an officer was culpable in such a case, which provides more safeguards. This is therefore an important provision to ensure that both companies and relevant officers can be held liable for their involvement in state threat activity, and that where there is wrongdoing on the part of an officer of the company that officer can be appropriately prosecuted for the offences.

For an officer to be held liable, they must consent or connive to the act or be negligent in relation to it, which is a higher bar than simply being unaware of the act, as the prosecution would need to demonstrate not just a lack of awareness but that, in being unaware, the person was failing to properly discharge their duties. The clause goes on to define a number of terms, such as a “body” and an “officer of a body”, and it provides that the Secretary of State may make regulations to modify the section in relation to

“its application to a body corporate or unincorporated association formed or recognised under the law of a country or territory outside the United Kingdom.”

That may be required as a result of differences in the nature of bodies corporate, their structures or their terminology under the laws of foreign jurisdictions. This ensures that bodies corporate outside the UK that commit offences under part 1 of the Bill can still be caught under these offences.

I will refer to the example given by the hon. Member for Halifax. We have tried throughout the Bill to demonstrate that the offence will be based on an individual acting directly or indirectly on behalf of a foreign power, and on whether they should reasonably know that that behaviour is on behalf of a foreign power. I understand her point about foreign-owned companies, but the Bill does not say that whole companies are acting on behalf of a foreign power. As she rightly says, there will be a whole range of UK individuals engaged in completely legitimate activity within the UK, and we do not want to give employees of those companies any problems.

The regulations will involve technical, rather than substantial, changes, so they will not widen the scope whatsoever. That is why they will be made under the negative procedure.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Clause 29 ordered to stand part of the Bill.

Clause 30

Consents to prosecutions

--- Later in debate ---

[Stuart C. McDonald]

Very educational; I have learned something new. I am grateful to the Minister for his explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Clause 31

Power to exclude the public from proceedings

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

[Holly Lynch]

I wish only to add that I imagine we would all agree that transparency in this legislative area should be the default, especially given the need to raise awareness of the challenges we face as a country and the individual responsibilities that we all share in combating those challenges with the arrival of these new offences. That said, it is of course right that clause 31 provides power to the court to exclude the public from any part of proceedings or offences under part 1, or for proceedings relating to the aggravation of sentencing, or other offences where the foreign power condition applies, should the evidence being considered deem it to be in the interests of national security to do so.

[Stephen McPartland]

As the hon. Member said, clause 31 provides those protections. It builds on the Official Secrets Act 1920, which gives the court the power to exclude the public from any proceedings if the publication of any evidence to be given would be prejudicial to national security. However, the passing of the sentence must still take place in public.

One important point is that the decision to exclude the public will be made by the court, not the prosecution. It is also important to reiterate that the power does not grant the use of closed-material proceedings. Therefore, as is the precedent in our criminal justice system, the defendant and their legal team will have access to all the evidence, as they would in other criminal proceedings.

I will end by reassuring the Committee that the clause is not meant to limit the transparency of our justice system or the independence of the judiciary, but to ensure that—only where necessary—the courts themselves have the power to protect the United Kingdom’s national security.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32

Power to impose prevention and investigation measures

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 57, in schedule 4, page 111, line 1, leave out paragraph 12.

This amendment would remove the power to require participation in polygraph sessions.

That schedule 4 be the Fourth schedule to the Bill.

[Holly Lynch]

Clause 32 is the first clause of part 2, and introduces the state threat prevention and investigation measures, or STPIMs, replicating the terrorism prevention and investigation measures, or TPIMs, framework, which is already in existence. Like TPIMs, STPIMs impose significant restrictions on a person’s freedoms without that being the consequence of a crime having been committed and tried before the courts.

Schedule 4 sets out a list of the types of measures that may be imposed on an individual under this part. The Secretary of State may impose any or all the measures that he or she reasonably considers necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity.

Taken cumulatively, the measures will restrict the freedoms of the STPIM subject in a way that is normally possible only during criminal or immigration proceedings, or restrictions under the Mental Health Act 1983. Inevitably, we are looking for assurances that measures of this kind are necessary and effective, especially as the threshold for applying an STPIM is naturally lower than the threshold for a criminal conviction.

In considering the balance, we have looked to the efficacy of TPIMs as a starting point, and at the invaluable work of the independent reviewer of terrorism legislation, Jonathan Hall QC, who provides an ongoing assessment in his annual review. According to the latest independent annual review of terrorism legislation, between the Terrorism Prevention and Investigation Measures Act 2011 receiving Royal Assent and 31 December 2020, only 24 individuals were served with a TPIM notice. That would suggest that they are not used often.

In 2020, all but one of the TPIMs in force were against members of the proscribed terrorist network ALM—al-Muhajiroun. The report makes clear that ALM’s direct or indirect impact on UK terrorism includes the 2013 murder of Fusilier Lee Rigby, the 2017 London Bridge Attack and the 2019 Fishmongers’ Hall attack. That underlines the severity and level of risk that those measures are seeking to manage and suppress, when considering the terrorism equivalent.

Jonathan Hall was asked whether he thought the STPIMs might be used more readily that TPIMS when he gave evidence in the Committee’s first session. He said,

“if the regime operates as it is intended to, because the Bill replicates the obligation for the Secretary of State to consider whether it is possible to prosecute in the first place. I do not think in practice that they will become a measure of first resort, just because they are so resource-intensive and complicated.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 10, Q16.]

When asked about the efficacy of STPIMs, he said,

“I expect that they will be effective because the agencies and the Home Secretary will only think about imposing one when they think it is going to work.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 6, Q6.]

We are reassured by Jonathan Hall’s contributions in that first session of the Committee. We will revisit some of his other comments in debates on other clauses, particularly around oversight in clause 49 and the ongoing review process under clause 40.

--- Later in debate ---

[Holly Lynch]

I was reassured by some of the detail in these clauses about that point, but the impact assessment from the Home Office says:

“It is assumed that the prosecution rate of state threats investigations is 33 per cent. This is an internal estimate from CPS, based on prosecution of previous OSA 1911-1939 cases.”

Based on where we envisage we might have challenges in securing prosecutions, I wonder whether STPIMs are also for the other side of a prosecution, as well as for when we cannot secure prosecution and get there in the first place.

[Stephen McPartland]

I am grateful to the hon. Lady for that point. I understand that our responsibility is to scrutinise the legislation to make sure that, as the hon. Member for Dundee East made clear, we do not open up a can of worms that can lead to greater and greater unintended consequences, but the reality is that the provision is to be a last resort.

If we are talking practically, counter-terrorism police are responsible for enforcing STPIMs. The amount of resources required to enforce and monitor a TPIM or STPIM is so great and so large that, as Members can imagine, it is not something that any of the agencies or anybody in Government wants to do, so it is not something that we will look to push. First and foremost, this is about prosecution by any means possible.

To give some kind of hope and clarity, I would like to make the point that the number of TPIMS currently in use is less than four. The number of TPIMs that have been used throughout the 10 years of their existence is less than the clause number that we started on today. I hope that gives some reassurance on how limited the measures will be, and on how few occasions they will be used.

We have been looking at the specific time limit, and we are including a specific condition to have a maximum of five years for the duration of an STPIM. Again, that is to mirror what is in the TPIM legislation. Additionally, subsection (4) requires the Secretary of State to publish factors that she considers are appropriate to take into account when deciding whether to restrict a person’s movement in the UK—for example, ensuring that they have access to appropriate medical facilities.

Part 1 to schedule 4 sets out 16 measures. Right hon. and hon. Members will know there are 17 measures in TPIM legislation for differences around drug testing, but we do not believe that is applicable in this case. The measures have to be tailored to the specific threat that an individual poses.

I want to touch on the polygraph measure, as it has been raised by a number of colleagues. It is designed to allow the Secretary of State to require an individual to take a polygraph test at a specific date, time and location. The purpose of the measure is to assist operational partners to assess whether an individual is complying with the other measures under their STPIM. The outcome of the session may be used to make changes to the individual’s suite of measures—for example, removing or adding specific measures to prevent or restrict their involvement in state threat activity. Again, this measure is expected to be used exceedingly rarely.

Let me reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that the polygraph session cannot under any circumstances be used to gather evidence for a future prosecution. I am stating on the record that polygraph measures cannot be used to gather evidence for a future prosecution, and I hope that that provides reassurance.

--- Later in debate ---

[Stephen McPartland]

I am always willing to write to the Committee, as the right hon. Member knows. I am happy to go away, think about this issue and then write to the Committee, so that I can put in writing the safeguard that I do not want a polygraph test to be able to lead to future prosecutions. I think that would work.

[Holly Lynch]

Before the Minister moved to the polygraph point, he was talking about cryptocurrencies and said that they are already quite a dated concept; however, my proposal is that we add cryptocurrencies to the list, in paragraph 5 on financial service measures, that includes postal orders, cheques and bankers’ drafts. With that in mind, it might be worth making an explicit reference in that list to whatever form of digital currency or cryptocurrency, given that we know it is a focus for hostile state activity.

[Stephen McPartland]

The hon. Lady makes a very good point. As she knows, I am always prepared to improve legislation so that we are happy with it on a cross-party basis, it goes through the House and we can support our intelligence communities. I am very happy to look at that issue. I did not even know we could still get postal orders and bankers’ drafts.

Let me give some examples of how STPIMs could be used, specifically for the right hon. Member for North Durham—I know that he would like that. If a British national were recruiting, talent spotting and reporting for a foreign intelligence service, and the evidence to prove the foreign power links was too sensitive to be used in court, meaning that a prosecution was not viable, an STPIM that might prevent harm could include a financial order, to prevent the person from accessing funds from the foreign intelligence service; a restriction on contact or association with individuals, to prevent the person from being debriefed by the foreign intelligence service handler; and electronic communications device measures, to ensure full coverage of devices used by the subject. That is one example of how an STPIM could be used.

Another example relates to a British national working in one of our defence companies, and would prevent sensitive technology transfer. Suppose a disgruntled British national employee of an advanced technology company is seeking to market specialised, valuable and unclassified knowledge to foreign companies. The investigation and disruptive conversation means that the individual is moved to less sensitive work and their company computer access is restricted, but they cannot be dismissed. They remain disgruntled, but prosecution is not viable. In that case, we could disrupt travel to prevent an individual from meeting foreign representatives abroad, so that they could not pass the secrets over to them, and we could restrict contact and association with individuals in the UK for the same purposes.

This example relating to the intimidation of dissidents is particularly important. Suppose a senior member of, for example, a cultural organisation from a foreign Government based in the UK is seeking to exert pressure on dissident diaspora through intimidation, harassment and damaging rumours. The individual cannot be expelled or deported, so victims are afraid to make criminal complaints for fear of recrimination in their home country. The STPIM could be imposed, because prosecution is not viable—the victim will not testify or make a statement. We could put measures in place to prevent an individual from associating with the victim or members of their family. We could prevent serious violence by ordering the subject to relocate to an alternative area in the UK. The STPIM could be justified in closed court proceedings, because it would prevent any identification of the victim. I hope the right hon. Member for North Durham enjoyed those examples.

--- Later in debate ---

[Holly Lynch]

I will keep my remarks brief. Conditions A to E, set out in subsections (1) to (5), provide a clear framework that the Secretary of State must work within, with conditions that would then be tested by the court. I listened carefully to my friend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. His amendment probes whether clause 33 should apply the civil standards of proof in relation to the decision to impose prevention and investigation measures, by proposing that “reasonably believes” be replaced with

“believes on the balance of probabilities”.

In considering that, as the hon. Member said, we look to Jonathan Hall’s evidence in this Committee’s first sitting, and then to the Terrorism Prevention and Investigation Measures Act 2011, and we can see that the wording has pretty much been copied verbatim to this Bill.

With that in mind, and given Mr Hall’s assessment that the measures have not been overused, the lower numbers subject to TPIMs and the reality of just how resource intensive they are, I am satisfied that “reasonably believes” is justifiable, but I look forward to hearing the Minister’s response to the points raised by the SNP spokesperson.

[Stephen McPartland]

Clause 33 mirrors TPIMs, in that it specifies the conditions that must be met in order for the Secretary of State to impose prevention and investigation measures on an individual under an STPIM. Condition A is that the Secretary of State must reasonably believe that the individual is or has been involved in foreign power threat activity. Condition B is that some or all of the foreign power threat activity is new. That ensures that when a notice has expired after the five-year limit provided by clause 34, a further notice may be imposed only where the individual has re-engaged in further foreign powers threat activity since the start of the five-year period.

Conditions C and D outline the two limbs of the necessity test for imposing the measures, so the Secretary of State must reasonably consider, first, that the notice is necessary for protecting the UK from the risk of foreign power threat activity, and secondly, that it is necessary to prevent or restrict the individual’s involvement in foreign power threat activity by imposing the specific measures.

Those two conditions provide an important safeguard that makes it clear not only that must it be necessary in general terms to impose measures on the individual, but that, in addition, each individual measure that is imposed must be necessary in its own right. Condition E requires the Secretary of State to have obtained the court’s permission before imposing measures on an individual. The function and powers of the court on such an application are set out in clause 35.

In urgent cases in which the Secretary of State considers that measures must be imposed immediately, the case must be referred to court for confirmation immediately after measures are imposed. In practice, we expect the emergency power to be used very rarely. The conditions are designed to ensure that STPIMs are used only where they are necessary and proportionate, and they cannot be imposed arbitrarily. There are also several stages at which the courts will be involved in the STPIM process, including granting permission before a notice may be served or confirming one that has been made in an urgent case. The automatic substantive review of the decision to impose the STPIM and all its obligations and a right of appeal against decisions taken in relation to the STPIM provide checks and balances to the decisions taken by the Secretary of State, so I encourage fellow members of the Committee to support the clause.

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the right hon. Member for Dundee East for tabling their amendment. It proposes amending one of the conditions for imposing an STPIM by changing the wording from the Secretary of State “reasonably believes” to

“believes on the balance of probabilities”.

I reassure the hon. Gentleman and the right hon. Gentleman that in the development of the measures consideration was given to the conditions that must be met in such cases. The Government consider reasonable belief of a person’s involvement in foreign power threat activity to be the appropriate test for STPIMs. Foreign state intelligence operatives are highly trained, sophisticated and equipped to obfuscate in relation to their activities and avoid Government security measures. Given that, it is important that the threshold is not too high.

--- Later in debate ---

[Stuart C. McDonald]

The clause allows part 2 notices, or STPIMs, to be extended by a year. Not only that but, as drafted, the clause allows for up to four further extensions, thus allowing an STPIM to be in place for five years, even if there has been no new foreign power threat activity.

As we know, these measures can place really significant restrictions on people’s liberty. The ability to extend TPIMs was controversial and only happened after they had been in place for a significant period. The views of the previous Independent Reviewer of Terrorism Legislation, Lord Carlile QC, have been summarised as:

“The TPIM Act 2011 was a balance between on the one hand enabling administrative controls to be imposed outside the criminal process for a significant period of time, and on the other hand ensuring that individuals were not controlled indefinitely on the basis of an assessment that they had once engaged in terrorism-related activity, unless there was evidence that they have done some further act.”

Indeed, the stated purpose of TPIMs when introduced by the 2011 Act was that they were

“targeted, temporary measures and not to be used ‘simply as a means of parking difficult cases indefinitely’”.

The case for and against lifting the two-year cap was considered in detail by another independent reviewer, Lord Anderson, in his report, “Terrorism Prevention and Investigation Measures in 2012”. He observed that it was tempting to wish for longer in the most serious cases, noting:

“The allegations against some subjects are at the highest end of seriousness”.

However, he concluded that the two-year limit was an “acceptable compromise” because, in summary,

“even 2 years was a serious length of time in the life of an individual, and TPIMs should not be allowed to become a shadow alternative to criminal prosecution with their lesser standard of proof…with the possibility of no serious thought being given to how the measures might come to an end.”

It is easy for the Government to say, “Let’s mirror the current TPIM time limit as it is now,” but why should we do that? Those time limits were extended to five years only after about a decade of use of TPIMs. Starting with a five-year time limit appears to be jumping off at the deep end. If we want to mirror TPIMs, we should start off with a much shorter time limit, as happened with TPIMs, and then if, over time, evidence shows that a longer limit is required, we can make that change. But it should be based on evidence about how the orders are operating in practice and not just on saying, “Let’s cut and paste the existing position with TPIMs.”

[Holly Lynch]

I thank the hon. Member for Cumbernauld, Kilsyth and—

[The Chair]

Kirkintilloch.

[Holly Lynch]

Kirkintilloch East. Thank you for that, Mr Gray—make sure that is in Hansard.

I thank the hon. Member for amendment 56. Clause 34 stipulates that a part 2 notice can remain in force for a limit of five years. There are a number of overlapping clauses in this part of the Bill, focusing on reviews and the ongoing considerations about the necessity of a TPIM. When we get to clauses 39 and 40, I will speak to the importance of the TPIM review group, which Jonathan Hall made very clear in his evidence is essential if we are to learn anything from the lessons of TPIMs. On clause 34, could the Minister confirm the due regard that the Secretary of State must have for other agencies and the review group when considering whether to extend a part 2 notice?

[Stephen McPartland]

I will start with the clause and then deal with the amendment. Clause 34 provides for when a STPIM notice comes into force, how long it will remain in force and how many times it can be extended. It sets a five-year limit in total. Once a notice has been imposed, it remains in force for one year. Unless renewed, it will expire after that time.

If the Secretary of State believes that conditions A, C and D, which we have just discussed, are met, it may be extended for a further year up to four times, taking the total to five years. A further STPIM notice cannot be imposed after this time unless new foreign power threat-related activity is uncovered. I would also like to make it clear that the notice is reviewed every quarter. Those measures ensure that STPIMs cannot be imposed indefinitely, and there are constant safeguards throughout their imposition.

The one-year period and the five-year limit balance the need to protect against threats to the UK from individuals, and allow further extensions to be granted if there continues to be evidence of the risk of involvement in foreign power threat activity. The provisions do not just look back, but recognise the important work that our security services and police would need to carry out both before and after a notice expires. I would therefore appreciate the Committee’s support for the clause.

Amendment 56 relates to the time limits placed on part 2 notices. Like hon. Members, the Government agree that it is important to ensure that individuals are not placed on STPIMs indefinitely. That is why we have included two important time-limit safeguards. The first is that STPIMs can be extended only after a year if the conditions on which they were imposed are still met. In particular, the approach we have taken contains a number of points where positive action is required to keep an STPIM in place. That important safeguard ensures that an STPIM cannot remain in force when it is no longer appropriate.

Secondly, STPIMs can be extended on only four occasions. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked why we had not opted for two occasions, mirroring the original TPIM legislation. That is because of evidence over the last decade from our operational partners about what they feel is appropriate and necessary. We are mirroring their experience with TPIM notices over the last decade, and we will work with them on STPIM notices.

The one-year period and the five-year limit balance the need to protect against further threats. Given the safeguards I have outlined, I ask the hon. Member to consider withdrawing his amendment.

National Security Bill (Eighth sitting)

Holly Lynch Excerpts

Committee stage & Committee Debate - 8th sitting
Tuesday 19th July 2022 Public Bill Committees

[The Chair]

With this it will be convenient to consider the following:

Clause 36 stand part.

That schedule 5 be the Fifth schedule to the Bill.

Clause 37 stand part.

Clause 38 stand part.

[Holly Lynch (Halifax) (Lab)]

Clause 35 sets out the function and powers of the court on the application by the Secretary of State to obtain permission from the court before imposing measures on an individual, as required under condition E in clause 33(5).

Subsection (4) provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware of the application or having the opportunity to make representations. That feels to be at odds with the rest of the justice system; however, given the nature of the risks we are attempting to manage and supress with the measures, the clarity in the explanatory note that this is

“to avoid a risk of the individual absconding”

is a sobering reality.

We welcome subsections (7), (8) and (9), which provide powers for the court in various scenarios. Clear tests are set out for the courts in subsection (3)(a), under which the court has to determine whether the Secretary of State’s decisions are “obviously flawed”. That standard is also used in schedule 5, under clause 36.

I sought a legal opinion about “obviously flawed” and, although there is a similar test in schedule 2 of the Counter-Terrorism and Security Act 2015, the sense from lawyers was that “obviously flawed” sets an unusual standard—for example, decision making might be found to be flawed only upon scrutiny, but not obviously so. Will the Minister clarify the standard? Is he in a position to confirm how many times the Secretary of State’s decisions have been deemed to be “obviously flawed”, so that we can consider any learning from that?

Clauses 37 and 38 provide for a directions hearing and a review hearing. Under clause 37(2), on giving the Secretary of State permission to impose measures the court must give directions for a directions hearing. According to subsection (3), those directions must not be served on the individual in a case in which permission has been granted until the part 2 notice has been served.

We will come to the importance of the ongoing review in clauses 39 and 40, which I expect will feed into the processes set out in clause 37. I am reassured that the operability of the whole of part 2 will be considered by an independent reviewer, as outlined in clause 49, in addition to the review hearing and the ongoing assessment of individual circumstances.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

As the shadow Minister says, these clauses put in place some important oversight and a scrutiny mechanism in relation to state threats prevention and investigation measures. On the whole, the oversight and scrutiny mechanisms appear to work, but I have some questions to put to the Minister for clarification.

First, to pick up on a point made by the shadow Minister, why is it the function of the court to determine whether the Secretary of State’s decision was “obviously flawed”? I was slightly surprised by that standard and not familiar with it at all. What is the difference between an “obviously flawed” decision and one that is merely “flawed”? Is not the simple requirement in clause 35(6) to apply judicial review principles in itself sufficient to let the court know what it is supposed to do?

Secondly, clause 35(4) allows the court to have its hearing on the Secretary of State’s application “in the absence of” the relevant individual and even without that person being notified of that happening. I can well understand that there will be some reasons why that may appear to be necessary, but the Bill does not provide any guidance at all to the courts as to when it would or would not be appropriate to proceed in that way. That struck me as quite a strange way to do things. It just says that the court may consider the application

“in the absence of the individual”,

without providing any guidance as to when that would be appropriate and the reasons the court should have for doing that.

That question is even more pertinent when the court hears an urgent case under schedule 5, which says that the Secretary of State must serve the part 2 notice on the individual and then, immediately after, refer the measures to the court. Given that the part 2 notice has been served on the individual and is enforced because of urgency, it seems strange that there would be justification for the court to consider the reference under the part 2 notice without the individual being present or even aware of the hearing. The individual will have been served the notice, so why does the hearing then need to proceed without them even being aware of it? Why would that power be necessary?

Finally, on the review hearing, clause 38(3) gives the court a broad power to simply

“discontinue the review hearing in any other circumstances.”

There is not much in the Bill that sets out why the court might want to do that and what factors would prompt a court to behave in that way. When is it envisaged that that would be necessary and why is there no more detail about that in the Bill?

[The Minister for Security (Stephen McPartland)]

I will respond to the questions as I go through my speech. I am always happy to take interventions.

Clause 35 mirrors the terrorism prevention and investigation measures and sets out the function and powers of the court on an application by the Secretary of State to obtain permission before imposing measures on an individual, as required under condition E of clause 33. The clause means that the court must apply judicial review principles and consider

“whether the relevant decisions of the Secretary of State are obviously flawed”.

The hon. Member for Halifax asked how many times decisions have been considered “obviously flawed” by the court and the answer is never; hopefully that gives some reassurance.

The Secretary of State will put the draft part 2 notice before the court. If the court considers that the decisions that conditions A, B or C are met were obviously flawed, it may not give permission to impose the notice. If the court considers that the decisions relating to condition D were obviously flawed, the court can give directions to the Secretary of State on the specific measures while otherwise permitting the notice to be imposed—again, there are more safeguards.

The court may assess the Secretary of State’s application without the potential subject of the measures being aware. That is important because, as the hon. Member for Halifax made clear, it prevents the individual from receiving notice that the measure could be imposed on them and obviously stops them running away and absconding.

Once the measures are imposed, the subject will of course have the right to an automatic full review by the High Court where the individual will be present and have legal representation. For any closed proceedings in the review hearing, there will be a special advocate to act in the subject’s interest. I have checked that the special advocate cost will be met by the Home Office for both parties. The review hearing is where the court will apply a high level of scrutiny to the Secretary of State’s decisions. The Government feel it is right that, rather than at the initial stage of obtaining court permission, the full scrutiny takes place at the second stage of court review, after the individual has had an opportunity to seek legal advice. We will come on to that in more detail.

Clause 36 gives effect to schedule 5, which makes provision for urgent cases in which the Secretary of State may, under clause 33(5)(b), impose measures on an individual without first obtaining the permission of the court. This provision has long-standing precedents: there are similar provisions relating to TPIMs in the Terrorism Prevention and Investigation Measures Act 2011 and to control orders in the Prevention of Terrorism Act 2005.

This urgent and exceptional power has never been used since the TPIMs regime was introduced. In all cases, it has been possible to obtain court permission in advance, and that will always be the preferred option. We do not expect the regime in this Bill to operate any differently. We have tried to put in place safeguards throughout the whole Bill. As I have said, the STPIMS are a last resort and it is all about trying to find other ways to prosecute.

As we know, the power will be used in rare and exceptional cases when there is an operational need to avoid any delay in taking measures that are considered necessary to protect the UK from a foreign power, threat or activity. We will come to oversight in later deliberations on this part of the Bill. To help the hon. Member for Halifax, I will say that I absolutely expect the person appointed to review the operation of this part to comment on the appropriateness of any use of the urgency process. I hope that provides reassurance.

Clause 37 ensures that there is timely and clear progress towards a full High Court review. The basis of the clause is, in essence, to ensure that in each case, when measures are imposed, a prompt and clear timeline is put in place, with the steps that need to be taken towards the subsequent full High Court review. The directions hearing must take place within seven days of a part 2 notice being served on the individual or, in an urgent case, within seven days of the notice being confirmed. Directions must then be set for a full review hearing to take place as soon as possible. The proceedings leading up to the full review hearing will be agreed by all parties.

The clause is not about the court considering the restrictions or the nature of the evidence; it is there more to ensure the speedy process of the approach to the full hearing. It is important that the hearing takes place speedily within that seven-day period, so that there is a direction of travel to ensure that subsequent oversight is well prescribed.

On clause 38, the involvement of the court is an important safeguard for the rights of the individual subject to the measures, and full judicial oversight of the process of imposing measures is key. As I alluded to earlier, clause 38 provides for a full High Court review to take place automatically in every single case in which state threat prevention and investigation measures are imposed. This will happen automatically, with no need for the individual to initiate the proceedings, in each case in which measures are imposed, subject only to the provisions that allow the discontinuance of proceedings included in subsection (3)—for example, if the person does not want the review to take place. Only the individual or court may make the decision to discontinue the proceedings, and the individual will always be able to make representations in respect of a proposal to discontinue.

At the full review, the function of the court is to review the decisions of the Secretary of State that conditions A, B, C and D were met at the time she made the decision and continue to be met at the time of the review. To remind the Committee, the decisions are that they reasonably believe the individual is or has been involved in foreign power threat activity; that some or all of that activity is new foreign power threat activity; that they reasonably consider that the imposition of STPIMs is necessary to protect the UK from the risk of action that constitutes foreign power threat activity; and finally, that they reasonably consider that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity, for the specified measures to be imposed on the individual.

Clause 38 requires the courts to apply the principles that are applicable on an application for judicial review. As Committee members will be aware, the courts take the view that judicial review is a flexible tool that allows for differing degrees of intensity of scrutiny, depending on the circumstances and the impact of the decision in question on the individual concerned.

As well as setting out the functions of the court in a review, clause 38 sets out the powers available to the court, which may overturn the Secretary of State’s decisions in their entirety if it finds that they were unlawful. If the court finds that it was necessary to impose measures but one or more of the measures imposed was unlawful, the Bill is clear that the court may quash the particular measures or direct that they be varied, while also directing that the rest of the notice comes into force. That will provide a balance between being able to protect the UK and ensuring that the measures imposed represent the minimum necessary interference with the rights of the individual.

In addition to the function and powers of the court, clause 38 also makes provision for circumstances in which the review may be discontinued. The court must discontinue the review if the individual requests it—for example, if they do not wish to challenge the case against them. However, as a further safeguard, the Bill specifies that before the court may discontinue proceedings under the power the individual subject to the measures and the Secretary of State must have the opportunity to make representations.

It is imperative that the correct checks and balances are in place to govern the operation of STPIMs, and the Government consider that clause 38, together with other provisions in the Bill that provide the requirement for court permission before the imposition of measures and subsequent rights of appeal, will deliver rigorous end-to-end judicial oversight of the decisions taken by the Secretary of State in the exercise of her powers. The continuous involvement of the court will provide a key, important safeguard for the rights of the individual subject to the measures.

In summary, clauses 35, 36, 37 and 38 are exceptionally important for the Bill and I urge the Committee to support them.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 37 and 38 ordered to stand part of the Bill.

Clause 39

Criminal investigations into foreign power threat activity

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

[Holly Lynch]

Clause 39 creates a requirement on the Secretary of State to consult the chief officer of the police force that is investigating or would investigate any offence, acts or threats in clause 26(3) that could fall to have been committed by the individual, on whether there is evidence that could realistically be used to prosecute the individual. During the evidence session, it was asked whether STPIMs would be easier to secure than a prosecution, so I welcome the provision in clause 39 that a prosecution has to be considered before the move to a part 2 notice—to be fair to the Minister, he was clear about that earlier in today’s discussion. The clause will also give the chief officer a statutory duty to consult the relevant prosecuting authority.

I am mindful that there is a difference between consulting a chief constable for the purposes of information gathering with a view to securing a prosecution and the ongoing necessity of managing someone in their force area who is subject to an STPIM. Will the Minister confirm whether the Civil Nuclear Constabulary or Ministry of Defence police, for example, would be consulted under subsection (2), given their roles in protecting prohibited places, regardless of the fact that they do not have any of the regular responsibilities of the other forces in England and Wales beyond their specific duties? The chief officer must also keep the investigation of the individual’s conduct under review, with a view to bringing a prosecution for an offence, acts or threats under clause 26(3), and must report on that to the Secretary of State while the part 2 notice remains in force.

--- Later in debate ---

[Stephen McPartland]

Clause 39 sets out the detailed requirements relating to the interaction between criminal investigations and the imposition of the STPIM notice. I want to make it very clear that it is always the Government’s preference and priority to seek the prosecution of those engaged in state threat activity. Where we can prosecute, we will. However, we accept that there are and will continue to be dangerous individuals whom, despite our best efforts, we cannot prosecute, which is why we need preventive measures to protect the UK from the threat posed by that small number of dangerous individuals. We believe the provisions in the Bill represent the most appropriate, proportionate and effective powers for dealing with this risk.

The commitment to prosecution is properly reflected in clause 39, which deals with criminal investigations. It requires, before the imposition of an STPIM notice, prior consultation with the police as to whether there is

“evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult with the relevant prosecuting authority on the same matter before responding to the Secretary of State. The provision will ensure that STPIM notices are not imposed on an individual when prosecution for state threat offences is viable instead. The police will continue to investigate and will refer the case to the prosecuting authorities if sufficient evidence comes to light.

Clause 39 makes the ongoing review of the investigation of the individual’s conduct with a view to prosecution a statutory requirement. As mentioned, there should be absolutely no doubt about our absolute and unwavering commitment to prosecute individuals where possible, which is reflected in the clause. The counter-terrorism police will continue to have full responsibility for overseeing this matter but, if necessary, they will engage with all other forces to ensure a full case for prosecution. The better our chance of getting a full prosecution, the better our chance of not having to use a STPIM notice.

The Government believe prosecuting to be the best way to move forward. The only situation in which prosecution does not result will be when a case has not passed the relevant test in the code for Crown prosecutors. Our ambition is to prosecute at every single stage and use STPIMs as an absolute last resort.

Question put and agreed to.

Clause 39 accordingly ordered to stand part of the Bill.

Clause 40

Review of ongoing necessity

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

[Holly Lynch]

Clause 40 introduces a review of ongoing necessity, meaning that the Secretary of State has a duty to keep under review the necessity of a part 2 notice and the measures imposed under it while the notice is in force. Through case law, a parallel system was established for TPIMs, following the Court of Appeal ruling that

“it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary.”

We welcome the clause. In Jonathan Hall’s 2020 review of counter-terrorism legislation, he gave a review of the TPIM review group—the TRG—meetings, at which officials from the Home Office, counter-terrorism police and MI5 review the necessity and proportionality of TPIM measures, consider variations, discuss exit strategies, are updated on the prospects of criminal prosecution and consider the outcome of practical and ideological mentoring sessions. He said:

“The Home Office official chairing the meeting injected a proper degree of challenge to the ongoing management of the TPIM subject, including on the possibility of relaxing certain measures, and impact on family members. The TRG is conducted using a draft agenda which now requires consideration of each measure in turn: this is a clear improvement over the previous practice of considering the measures as a whole. Following my observations in previous reports, I am pleased to say that there is greater analysis of whether prosecution for terrorism offending is a reasonable alternative to a TPIM.”

In the first oral evidence session, Mr Hall said:

“The first message from the TPIMs is that you need to have a strong chair of the TPIM review group, or the equivalent”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 5, Q2.]

for the STPIMs.

The clause says only that a Secretary of State must keep the notice under review. Will the Minister confirm that an STPIMs review group will be a key feature of the ongoing assessment of an STPIM? How often will it meet? Will he confirm that the review group will be a primary mechanism for providing information to the Secretary of State, allowing them to make informed decisions?

[Stephen McPartland]

I will detain the Committee on this clause for only about an hour and a half. [Laughter.] I can feel the excitement. The Government recognise the disruptive nature of the measures on a person’s life. That is why the notice should remain in place only for as long as necessary and the measures imposed should remain tailored to the threat.

Clause 40 provides for an important safeguard by placing a duty on the Secretary of State to keep under review the ongoing necessity of both the STPIM notice itself and the measures specified in it. Regular monitoring to consider how the individual is responding to being on a STPIM, reviewing whether any new evidence has come to light for a prosecution to be possible and considering whether any changes are needed by varying the restrictions will remove any doubt that, while it remains in force, an STPIM notice will be assessed to ensure that it remains necessary at all times.

There were a few questions from the hon. Member for Halifax; I will try to answer them as best I can. There will be quarterly reviews and the individual will be able to appeal, as we discussed earlier in the debate. She is correct that reporting will be done quarterly. The review will be accountable to the Secretary of State and will be chaired by an expert civil servant and attended by operational partners. Here is the bit that the hon. Lady and our friends in the SNP will be most keen to hear about: as with TPIMs, there will be an independent reviewer to ensure that clause 40 and the whole of the STPIMs regime will be implemented correctly. I hope she can support the clause.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

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

National Security Bill (Ninth sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 6th September 2022 Public Bill Committees

[The Lord Commissioner of Her Majesty’s Treasury (Scott Mann)]

I beg to move,

That the Order of the Committee of 7 July 2022 be varied by the omission from paragraph 1(e) of the words “and 2.00pm”.

[Holly Lynch (Halifax) (Lab)]

May I put on the record my great sense of regret and disappointment that the Committee is not progressing today? There is a great deal of support for the Bill, because we all recognise that our security services need the new measures to keep our country safe. At every opportunity, we the Opposition have sought to be constructive and to undertake our due diligence in providing the level of scrutiny that should come with the powers in a Bill such as this.

We have sought to work with the Government, but it is disappointing that we will now have a fourth person acting as Minister in a Bill Committee on the matter of national security. We very much look forward to meeting again on Thursday so that we have the appropriate opportunity to scrutinise and debate every last bit of the Bill and the new clauses, ensuring that the security services have what they need from us. Despite a real sense of disappointment, we look forward to ensuring that we meet again on Thursday to progress without any delay.

[Maria Eagle (Garston and Halewood) (Lab)]

I am surprised by the difficulties caused for the Committee by what has happened. I have before me the letter by the Minister for Security, the hon. Member for Stevenage (Stephen McPartland), which he has kindly placed on Twitter. After all the niceties, and saying that he will not carry on, he signs off his letter by saying quite clearly:

“I will continue to serve until a new Security Minister is appointed and look forward to supporting our new Prime Minister.”

So where is the Minister? A new Security Minister—if one is to be appointed—has not been appointed. The hon. Member for Stevenage is still the Minister, and in his letter indicating his wish to resign in due course, he has undertaken to continue to serve until a new Security Minister is appointed. We have business this morning on one of the most important Bills before the House in the current Session—one that has been delayed for years because the Government had not got on with producing it.

Not only that, but we started Committee stage in chaos, when a former Minister suddenly resigned. The poor old Whip, to whom I extend my greatest sympathies —it is not his fault; he is just doing his job—has now been placed in an utterly invidious position on two occasions in one Bill Committee. We started out with a Minister resigning, and now this Minister has indicated his intention to resign but has made it quite clear in that letter that he intends to continue in post until a new appointment is made by the new Prime Minister. Let me remind the Committee that that appointment has not yet been made, although we expect that to happen later today.

So where is the Minister? Has he been asked not to turn up by the Government, or has he chosen not to turn up? If the latter is true, he is not doing as he undertook to do—continue in post until a replacement is appointed. It is an important part of any Minister’s job to take a Bill through the House and answer the questions of the Opposition and their own Back Benchers. This Minister has been working on that; I have no doubt he will have spent the whole of August reading through the Bill and getting his head around it in a way that he had perhaps not quite managed in July, when he was quite honest about being new to it. He will be an absolute expert on it by now. He could have been here this morning, and this afternoon, for us to make progress on it.

I would like the Whip, because he is a Minister, to explain to us in replying, which I hope he will, whether the Minister for Security was asked not to turn up today or whether he chose not to. If the latter, it is a dereliction of duty; if the former, Opposition Members would like to know why. I for one deplore the way in which the Committee has been treated by the Government. We are trying to consider a very important Bill, which is about the future security of this country, and we have been treated shabbily. Government Back Benchers have been treated shabbily, the Committee has been treated shabbily, and the House has been treated appallingly. The Government should resign en masse and let us have a new Government. Then we might be able to make some progress on the Bill.

--- Later in debate ---

[The Chair]

Order. The right hon. Gentleman is ranging very wide of the topic of discussion. Perhaps he might bring himself back to the motion.

[Holly Lynch]

rose—

[Mr Jones]

I give way to my hon. Friend.

[Holly Lynch]

My right hon. Friend is making a powerful point. The Government act as if they are presenting the finished Bill, but we have had the worst of both worlds: there have been significant additions to it at quite late stages of the Committee, in addition to the Ministers changing throughout the process. We are really keen to work with them. Give us everything that we need to be able to do that.

[Mr Jones]

Mr Gray, I will come back to the point like a boomerang, as you know I always do. My hon. Friend makes a good point. That is the other side to the Bill. Foreign agent registration was announced the other day; why that was not done on Second Reading is baffling. It is not as though the Bill has not had a long gestation period; that has been longer than an African elephant’s. It has all been worrying for those people who treat national security with importance.

Let me say publicly that I understand from speaking to some people in the civil service and others that they want the Bill to make progress. I cannot understand the delay. When the Bill was introduced it was incomplete, but somehow the Government had the attitude that it was the final product. No—scrutiny in Committee is very important. I predict that if the Bill does not go through some changes in Committee it will be absolutely carved up when it gets to the other place, because there are bits in it that we know will not survive that process. We could have avoided that by consensus. I am committed, and I am sure that my hon. Friend the Member for Halifax—

National Security Bill (Eleventh sitting)

Holly Lynch Excerpts

Committee stage
Thursday 8th September 2022 Public Bill Committees

[Tom Tugendhat]

As the comparable sections in the terrorism prevention and investigation measures legislation make clear, clauses 41 to 44 are technical elements that improve the regime and make it work in practice. Clause 41 mirrors TPIMs by making provision for the measures imposed to be varied while they are in force. That will allow changes to be made to the restrictions where necessary, in response to changes in the individual’s personal or family circumstances or to the assessment of the risk they pose. Those provisions will be important in ensuring that the regime is able to respond dynamically and flexibly to changing circumstances, and that the individual is able to live as normal a life as is possible without posing a threat to the British people.

The provisions will also be important to securing the effective operational management of state threats prevention and investigation measures. Critically, the underlying requirement that the measures imposed must always be necessary and proportionate remains, and that is explicitly the case for any variation that has the effect of strengthening the measures imposed.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under you as Chair once again, Ms Ali. They say a week is a long time in politics: never has that been truer than this week. I am very pleased to see the Minister in his place, but—for the second time over the course of this Committee—not quite as pleased as the hon. Member for North Cornwall that he once again has a Minister in place. I welcome the Minister to his role; as others have said, he is the fourth Minister we have had over the course of this Bill. We welcome the opportunity to continue to work together, now that we can make some vital progress on this really important piece of legislation. I also look forward to working with him on this policy area beyond just the legislation that is in front of us.

Turning to the detail of this group of clauses, clause 41 makes provision for the measures imposed under a part 2 notice to be varied in a number of different circumstances, as the Minister has outlined. Subsection (2) makes it possible for the Secretary of State to vary a relocation measure in a part 2 notice if considered necessary

“for reasons connected with the efficient and effective use of resources in relation to the individual”.

We are satisfied with those measures, and recognise the necessity of the remaining provisions in the clause.

Clause 42 provides a power for the Secretary of State to revoke a part 2 notice at any time by serving a revocation notice, whether or not in response to a request by the individual. The Secretary of State may exercise that power where they consider it is no longer necessary for the part 2 notice and the measures imposed under it to remain in force. The explanatory notes say that

“although the measures may no longer be necessary at the time that the Part 2 notice is revoked (for example because the individual has been detained in prison), they may subsequently become necessary again (when the same individual is released from prison, perhaps following an unsuccessful prosecution for a criminal offence).”

As I have said before, the assumed prosecution rate for state threats in the Home Office impact assessment is just 33%, so I am concerned that we might need that level of flexibility, depending on the circumstances.

Subsection (6)(a) of the clause also provides a power for the Secretary of State to revive for a period of a year a notice that has previously expired without being extended, without the need for evidence of new state threat activity. Surely if a person continues to be a threat, the notice should not be allowed to expire; alternatively, if the notice has been allowed to expire because the person is no longer deemed a threat, reviving a notice without any new information surely could not be justified. On that basis, I would be keen to hear any further rationale for the provisions in subsection (6)(a).

When considering the revocation of part 2 notices, it is also worth considering what Jonathan Hall QC described as the “TPIM Catch-22” in his annual report on the terrorism equivalent of these part 2 measures:

“On the one hand, in order to test whether an individual would revert to terrorism-related activity in the absence of TPIM measures, there may be no alternative but to reduce or remove measures; for example, by allowing an individual to associate or move more freely.

“On the other hand, association and movement measures have been imposed precisely to counter the risk of terrorist-related activity. In the absence of evidence of risk reduction, to do so might put members of the public at risk of harm.”

It is not easy to step down from STPIMs once they have been imposed and there is a clock ticking on the restrictions imposed on a suspect, so what efforts are we making to establish best practice on this, so that clauses 41 and 42 can be deployed as effectively as possible?

Clauses 43 and 44, also in this group, make provision for circumstances in which a part 2 notice is “quashed” or directed to be revoked as a result of court proceedings, and schedule 6 rightly provides other circumstances in which an individual who is convicted of an offence under clause 50 has a right of appeal against that conviction.

Other than the points we have raised, we are satisfied that these measures strike an appropriate balance.

[Stewart Hosie]

I welcome the Minister to his place.

In this group, clause 41 allows for the variation of STPIMs, either on application by the individual on whom it has been served or by the Secretary of State, when certain circumstances apply. Most of the clauses in this group seem to make sense, but there is some slightly odd wording. I know the Minister described these measures as “technical” and said that they would improve provision, but will he give some clarity?

Clause 41(1)(c) provides the power to vary, which is available if necessary

“for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity.”

Why is that? The words “purposes connected with” appear to be a slightly odd formulation. Why is the requirement not simply to prevent or restrict involvement in “threat activity”?

That same question arises in relation to clause 41(2)(a), but in that paragraph what is meant by allowing a new relocation measure to be invoked when

“necessary for reasons connected with the efficient and effective use of resources in relation to the individual”?

What does that actually mean? The Minister described these provisions as “dynamic” and “efficient”. Are we saying that people may be moved for a second time simply to save money? The explanatory notes suggest that is the case, so I seek reassurance that such a provision will not be used unless genuinely necessary.

Clause 42 allows for the revocation of notices, including on application, but it does not appear to restrict the number or frequency of revocation applications. It also allows the Secretary of State to make a “revival notice” in regard to a part 2 notice that has expired or been revoked. It protects against expired notices already extended to the maximum limit, but it seems to leave open the possibility of revoking a four times extended part 2 notice and then reviving it, despite the time limit. That seems to be expressly permitted in clause 42(7)(b), although clause 42(9) appears to stop that. Will the Minister confirm that revival notices cannot be used to try to circumvent the absolute maximum of five years and that clause 42(9) will prevent that happening?

Turning briefly to schedule 6, which covers circumstances in which a person has been convicted of breaching a part 2 notice but the notice or extension is “quashed” so that the offence would not have been committed had it been quashed earlier. There are some very tight timescales in this schedule. For example:

“An appeal under this Schedule to the Court of Appeal against a conviction on indictment in England and Wales or Northern Ireland…may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises”.

The same 28 days is used in relation to

“an appeal under this Schedule to the High Court of Justiciary”—

the Scottish High Court of Appeal—

“against a conviction on indictment in Scotland”.

There is a 21-day deadline on

“an appeal under this Schedule to the Crown Court against a summary conviction in England and Wales”.

There is a 14-day time limit on

“an appeal under this Schedule to the Sheriff Appeal Court against a summary conviction in Scotland”.

Some of these timescales, particularly the 14 day one, are very tight and it may be very tricky to know precisely when the clock starts ticking, as that depends on when a different clock has run out.

We may be slightly over-cautious. However, it appears ridiculous if people are left with convictions for breaching what would have been illegal orders. Would it not be more sensible in those circumstances, to avoid people having to go to appeal courts of one sort or another in short timescale, simply to automatically quash them? Why is there a time limit on the ability to appeal in any circumstance?

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[Holly Lynch]

I am grateful to the Minister for that explanation. It is absolutely right that clause 45 sets out those rights to appeal. I have nothing further to add at this stage, but we will come back to oversight when we discuss later amendments and new clauses.

[Stewart Hosie]

Clause 45 includes the important power to appeal to the court against the decision to review or revive a part 2 notice; against variations, or the refusal of them; against unlimited revocation applications; and in relation to permission applications. As the Minister said, the function is to review the decision, and the court must apply the principles applicable on an application for judicial review.

That sounds fine—so far, so good—but why is there no right to appeal against a clause 35 permission to impose STPIM decisions, as made clear in clause 47? Is it because it is expected that other procedures will have the same effect, for example an application to revoke, or is this an attempt to limit in statute the ability of those subject to STPIMs having access to court to appeal in those circumstances?

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Currently, the courts tend to make such an order in respect of most TPIM cases and there are several benefits. The anonymity order limits the impact, including from media intrusion, on the individual’s private and family life. It also limits the impact on the community in which the individual lives, both in terms of community cohesion and ensuring the ability to monitor and enforce the measures effectively without drawing attention or causing concern within the community.

[Holly Lynch]

I am grateful to the Minister for that introduction to clause 47 and schedule 7. I am particularly interested in what he had to say on special advocates and I will perhaps come on to that.

Schedule 7 introduces provisions relating to prevention and investigation measures and proceedings, as we have already heard. As outlined in the explanatory memorandum, paragraph 2 will take into account closed elements of proceedings where sensitive material is not disclosed as it would be contrary to the interests of the UK’s national security to do so, with paragraph 3 setting out the rules for the court on disclosure. In previous exchanges, we have examined the balance that needs to be struck on both these issues, so we expect the commitments to both transparency and national security to be weighed delicately in each instance.

We certainly welcome the guarantee around article 6 of the European convention on human rights, which is set out in paragraph 5. Paragraph 10 provides for the appointment of a special advocate in relation to any closed proceedings. A special advocate attends all parts of the proceedings—both open and closed—and plays a key role in scrutinising material while acting on behalf of the individual subject to the proceedings. The explanatory notes say that part of the function of the special advocate is to ensure that the closed material is subject to independent scrutiny and adversarial challenge, including making submissions in closed session on whether the closed material should be disclosed to the individual.

I think that the Minister confirmed that the special advocate would be a barrister, but I could not find any detail within the Bill or the explanatory notes about how a special advocate would be appointed and what their experience and background would be expected to be in such circumstances, when they would be providing such a specialist function. I would be grateful if there was a commitment to ensuring that those things are clear in the Bill and the explanatory notes that accompany it.

[Stewart Hosie]

Schedule 7 empowers the court to make rules in relation to reviewing proceedings and onward appearance, and the rules of court must secure not only a proper review of decisions, but

“that disclosures of information are not made where they would be contrary to the public interest.”

We can have determinations without a hearing, without full reasons being given for a decision—the Minister described that—and, when sensitive information is to be laid, hearings without the accused. There is a duty of disclosure on the Secretary of State, but he or she can apply not to disclose certain information on the grounds that disclosure would be

“contrary to the public interest.”

That rule means that the Secretary of State might be able to ignore other requirements to disclose information. That is Kafkaesque.

The Minister, rightly, prayed in aid national security; he was absolutely right to do that. We can all understand that there could be circumstances where such rules would be necessary, but does the legislation describe those circumstances appropriately? The watchwords appear to be “public interest”, but is that not far too wide or far too vague? Given he prayed in aid national security, why do we not only allow the avoidance of disclosure on genuine national security crimes?

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[Tom Tugendhat]

Clause 48 requires the Secretary of State to report to Parliament every quarter on the exercise of her powers under this part of the Bill. The Committee will recognise the parallel to similar measures in the TPIM Act 2011. Although details of the operation of the system and of particular cases will necessarily be sensitive and cannot be disclosed publicly, the clause acts as an additional safeguard by welcoming public scrutiny of the use of the regime and powers, and offers reassurance that crucial information about the operation of the regime will be public and kept up to date. Crucially, that information will include the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed. It will also include details of court judgments handed down in the relevant period that relate to the use of those powers.

Clause 49 requires the Secretary of State to appoint an independent reviewer to review the operation of part 2 annually. First, the reviewer is required to undertake a review of the operation of the STPIM regime as soon as is reasonably practical at the end of each year, and a report on the outcome of the review must be sent to the Secretary of State as soon as is reasonably practical after the review has been completed. Then, the Secretary of State is obliged to lay the report before Parliament. That replicates the approach in TPIMs, for which the annual reports have been an effective way of examining the Government’s use of their powers.

The independence of the Independent Reviewer of Terrorism Legislation, combined with their unrestricted access to Government papers and intelligence, has led to real insight and informed reports that have aided the functioning and development of the TPIM regime. Using the same approach for STPIMs will ensure similarly robust scrutiny. Omitting the clause would undermine the level of oversight and transparency of the regime. I hope the Committee agrees that the provision is important for the effective operation of STPIMs.

New clause 2, tabled by the hon. Member for Halifax, proposes commitments to review annually the operations of parts 1, 3 and 4 of the Bill. I thank the hon. Lady for tabling the new clause and I understand the intention behind it. Appropriate oversight of national security functions—particularly the use of intrusive powers—is important. A range of oversight mechanisms are in operation and govern both the UK’s intelligence agencies and the police, which are the primary bodies that will utilise the new powers in the Bill.

As I have just mentioned in addressing clause 49, the Government have made a commitment to an independent reviewer of part 2 of the Bill. Although there may well be merit in extending oversight of the legislation beyond part 2, careful consideration must be given to how that is done. In some cases, it could create an undesired overlap of duplication of responsibility. The Committee discussed that earlier—a little bit before my time—in the context of the hon. Lady’s proposal for an independent body to monitor disinformation. There are further examples of potential duplication, such as the powers in clause 22, which are already the responsibility of the Investigatory Powers Commissioner.

The new clause also proposes that part 3 of the Bill be reviewed by the Independent Reviewer of Terrorism Legislation. As the Committee knows, part 3 contains measures to freeze civil damages awarded to claimants who are seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, it is already in the remit of the Independent Reviewer of Terrorism Legislation to review those measures. An explicit commitment to oversight of part 3 of the Bill is therefore unnecessary and would duplicate the existing discretion of the Independent Reviewer of Terrorism Legislation to review and report on terrorism-related legislation.

With those points in mind, the Government cannot accept new clause 2 at this stage. Although I fully appreciate the purpose behind the new clause, I ask the hon. Lady to withdraw it for now. The Government take oversight of the Bill seriously, and we will consider the best way to approach it. I will be in touch with her about that.

[Holly Lynch]

I am grateful for the way the Minister has approached the new clause. I accept entirely the volume of work he has had to do in the past 24 to 36 hours.

We feel quite strongly about some of the proposals we are advocating for in new clause 2. There is an acceptance of the real value of the work undertaken by the independent reviewers right across the agencies that work with this type of legislation. We think we are largely doing the Government a favour in putting these proposals forward.

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[Tom Tugendhat]

I thank hon. Members for the tone of this discussion. I appreciate that scrutiny is important. This is about protecting not just the rights of individuals, but the agencies that are carrying out such important work on our behalf. Their heroism and courage on operations need to be protected, so that the agencies are not later found in legal difficulty in areas where they have acted not only with integrity but with enormous courage. I therefore appreciate the tone.

Briefly, I will touch on the question of scrutiny and laying before the House. I will make an absolute commitment to bring forward reports as soon as possible. I appreciate that there have been a few issues of late, which may have delayed things. I assure the hon. Member for Halifax that I will do my best to ensure that those timelines are reduced and are as sharp as possible. I absolutely appreciate her point. The issue of being laid before both Houses is made absolutely clear in the publication.

To touch on the question of who the commissioner might be, that has not been resolved as yet. I appreciate the hon. Lady’s point and there is merit on both sides of the argument, but either way, there is huge merit in ensuring that whoever is doing TPIMs has a very close connection with whomever is doing STPIMs. Whether that is a newly appointed individual or the extension of a role, I am happy to ensure that they work closely together.

[Holly Lynch]

We have been probing that during the passage of the Bill. Because that role is so crucial to the oversight that needs to follow the rest of the provisions in the legislation, can the Minister, as an absolute minimum, confirm that that person will be in post and that that issue will have been resolved by the time the Bill is enacted, so that that is not an ongoing question that starts to run into the legislation being enacted?

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[Tom Tugendhat]

The clause provides for a criminal offence of breaching a measure specified in a part 2 notice without reasonable excuse. This echoes, as do many of the provisions, a similar provision in the TPIM regime, and includes cases in which a person has permission from the Secretary of State to contravene a measure and does not adhere to the terms or conditions of that permission. For the sake of enforceability, it is vital that a part 2 notice is reinforced with effective penalties if the subject does not comply. Hence the maximum penalty on conviction is a custodial sentence not exceeding five years, unless the travel measure is breached, in which case the maximum sentence is 10 years.

[Holly Lynch]

The clause provides for an offence of contravening without reasonable excuse any measure specified in a part 2 notice. That, again, mirrors section 23 of the Terrorism Prevention and Investigation Measures Act 2011. According to the Government’s most recent transparency report, in December 2020 the total number of individuals who had been served a notice since TPIMs were introduced in 2011 was 24, so compliance is relatively high. But so are the stakes when someone breaches the terms of such measures.

According to the “Statistics on the operation of police powers under the Terrorism Act 2000 and subsequent legislation” quarterly report from the Home Office, the number of people who have been prosecuted and convicted under section 23 of the TPIM Act, meaning that they contravened an order, is 10. Like TPIMs, the primary function of STPIMs is to be able to control and monitor those who represent a serious threat to our national security but cannot yet be prosecuted. We have been assured that the primary function of an STPIM is to be able to manage a person while an investigation into a part 1 offence is established, rather than simply creating a situation where a prosecutable breach is highly likely.

We note the particular focus on travel in clause 50, and that under subsection (2) an individual who travels without permission loses any reasonable excuse defence. Given that we anticipate that there might be a higher number of foreign nationals and dual nationals in this cohort due to the state threat nature of the offences, it is possible that we might have higher numbers of requests to attend overseas births and deaths of family members and loved ones among the cohort. However, the risk of permitting that travel, which might mean a return to a very hostile state that we fear is sponsoring the individual’s activity, presents a massive challenge. To ensure there are robust decision-making processes around those considerations and to have good reporting and a review of those elements of the clause would be welcome additions.

[Stewart Hosie]

As the Minister said, the clause creates a criminal offence of contravening without a reasonable excuse a measure in a part 2 notice, but there is no defence of reasonable excuse if the subject leaves the UK when they are restricted from doing so. In normal circumstances, a breach of a part 2 notice would leave the individual subject to five years’ imprisonment on indictment, or 12 months’ imprisonment on a summary conviction in Scotland, but that becomes nine years’ imprisonment on indictment for a breach of a travel measure.

I wish simply to get to the bottom of why some of the breaches of a part 2 notice appear to be disproportionately harsh. The Minister said that much of this provision mirrors the provisions of TPIMs; does this bit—the doubling of the tariff for a breach of a travel measure—mirror the TPIMs provisions? If it does, how often was such a penalty imposed for such a breach under the existing provisions?

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[Tom Tugendhat]

The clause gives effect to schedule 8, which provides the police with powers of search, entry, seizure and retention in a number of scenarios relating to STPIMs. For the sake of ease, I will cover the clause and the schedule together.

Before I go into the detail of the clause, I remind the Committee that STPIMs will be a tool of last resort. The Government will use every other tool at our disposal before resorting to such significant measures. Again, I remind the Committee that these measures mirror those in the TPIMs regime.

In order to effectively enforce the regime and check an individual is complying with the measures under their STPIM, the police will have the powers they need to enter premises, conduct necessary searches and seize and retain items as necessary. They will also be able to arrest the individual for a “breach of” offence if they fail to grant police access.

Schedule 8 provides powers to the police to enter and search premises without a warrant to locate an individual for the purpose of serving an STPIM notice or another specified notice on them; to search an individual or premises when serving an STPIM notice for the purpose of discovering anything that might breach any measures specified in the STPIM notice; to search premises on suspicion that an individual subject to an STPIM notice has absconded; and to search an individual subject to an STPIM notice for public safety purposes. It provides a power to police with a warrant to search an individual or premises to determine whether an individual is complying with the measures specified in the STPIM notice. There are also powers for a constable to seize and retain items found in the course of such searches.

I remind the Committee that the STPIM itself is kept under review and requires a court’s permission to impose the measure. That means that a court will have already agreed with the assessment of the Secretary of State that the individual meets the meet five conditions in clause 33, which the Committee has already agreed to. That means it is proportionate in terms of a national security determination for the police to be able to undertake the aforementioned activities without a warrant. The powers will be essential to managing and enforcing the measures imposed under STPIMs and, importantly, they provide the right balance between effective powers and safeguards for the rights of the individual.

[Holly Lynch]

I have a couple of queries on schedule 8, which provides powers of entry, search, seizure and retention in a number of scenarios relating to part 2 notices.

I have queried the use of the word “constable” in legislation before, but it seems to be standard. Paragraph 9(9) states:

“The warrant may be executed by any constable.”

Previous schedules specify certain ranks and specialisms, such as counter-terrorism officers, to undertake such duties. Are we satisfied that further stipulations on who may execute a warrant are not required?

Sub-paragraph (10) states that a warrant issued by a court to search the individual, the individual’s place of residence, or other premises specified by the warrant, expires after 28 days. That period feels a bit odd to me. We want officers to have the flexibility they need, but I cannot imagine a scenario in which they have grounds to apply for a warrant but then take more than 20 days after it is issued to execute it. I am grateful to counter-terrorism police for sharing a bit more about their operations and how these warrants are used, which has provided some reassurance on this front, but will the Minister confirm that a warrant cannot be executed more than once in the 28-day period?

[Stewart Hosie]

Clause 51 applies schedule 8, which makes provision about various powers of entry, search, seizure and retention—to enter and search premises for the purpose of personally serving, to search for items that breach the notice, and to search when there is a suspicion of absconding. A warrant is required to search people or premises for the purposes of determining whether an individual is complying with the measures specified in the notice, and the warrant is to be granted only if necessary.

However, some of the powers in paragraph 10 appear to be rather broad, allowing a person to be searched without a warrant to see whether they might be

“in possession of anything that could be used to threaten or harm any person”.

I am not quite sure what that means. Unlike in the case of other warrantless powers, there is no requirement even for suspicion that someone is likely to threaten or cause harm. What is the justification or the reason for that?

Paragraphs 11 and 12 contain very strong powers to retain certain items which are seized, with no time limit other than

“as long as is necessary in all the circumstances.”

There follows a non-exhaustive example of what could represent necessity, but necessary for what? Is there provision for a person to challenge the ongoing retention of property seized by police under these powers? Is there a model for this drafting that has been used elsewhere? If there is, and if a piece warrantless search and retention legislation exists, how frequently is such a measure used?

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[Tom Tugendhat]

The clause will give effect to schedule 9, which makes provision for the taking and retention of biometric material from individuals subject to a part 2 notice. I will cover the clause with the schedule.

The biometric data retention provisions relating to state threats prevention and investigation measures are in line with those existing elsewhere in the statute book, including in TPIMs, which have been well established for more than 10 years. The schedule makes separate provisions for taking the fingerprints and samples of an individual subject to a specified prevention and investigation measure in England, Wales and Northern Ireland to that of Scotland. That ensures that provisions are in line with different police procedures and legislation.

constable may take biometric data, which could include physical data, from an individual subject to a part 2 notice. The individual will be informed of the reason for the fingerprints or sample being taken. Police can require an individual to attend a police station for the purpose of providing biometric data, and that material may be checked against other such material held under a variety of other powers. The schedule requires the destruction of relevant material, including fingerprints, DNA profiles or relevant physical data, unless there is a power to retain, which I shall come to.

The purpose of the provisions is to ensure the right balance between the protection of the public and individual civil liberties. Under paragraph (11), any samples taken from the individual must be destroyed as soon as a DNA profile has been derived from that sample or, if sooner, within six months of taking the sample. Paragraphs (8) and (9) contain powers to retain biometric data. Where there is no relevant previous conviction, fingerprints, DNA profiles and physical data may be retained for six months after the end of the relevant part 2 notice being in force.

Under paragraph (9), a national security determination can be made by a chief officer of police, enabling the police to retain for up to five years data relating to an individual who may pose an enduring national security threat. All national security determinations that can be reviewed must be reviewed by the biometrics commissioner, who has continued oversight of the retention and use of such data.

We recognise the importance of safeguarding individuals’ right to privacy, so paragraph (12) sets out the limitation of uses for any retained material taken from a person subject to a part 2 notice, which are in the interests of national security, for the purposes of investigation foreign power threat activity, for the purposes of a terrorism investigation, for the detection and prevention of crime, or in the interests of identification only.

[Holly Lynch]

I listened intently to the Minister. Schedule 9 makes provision for the taking and retention of fingerprints and non-intimate samples from individuals subject to a part 2 notice. Schedule 9, like schedule 3, is subject to several Government amendments. As the explanatory notes explain, fingerprints and non-intimate samples have the same meaning as that given in section 65 of PACE 1984. I would be grateful to the Minister for some clarity on that, which he may need to provide in writing. There is a lot going on in relation to biometrics in different parts of the Bill.

Paragraphs (6) to (11) make provision relating to the destruction and retention of material taken from individuals subject to a part 2 notice. The explanatory notes say that where an individual has no relevant previous convictions, fingerprints and DNA profiles may be kept for only six months after the part 2 notice ceases to be in force. Paragraph (11) goes on to state that, as provided in the Protection of Freedoms Act 2012, material taken under PACE, for example, or that is subject to the Terrorism Act 2000 or the Counter-Terrorism Act 2008, need not be destroyed if a chief office of police determines that it is necessary to retain that material for purposes of national security. Given that we are dealing almost exclusively with matters of national security in schedule 9, can we assume that the majority of biometric evidence taken from individuals subject to part 2 notices may be held indefinitely under this provision?

I am reliably informed that the biometric retention provisions in the Bill are designed to bring the powers into line with similar provisions in terrorism legislation. Schedule 9(8) deals with the retention of biometrics collected in the course of the service of a part 2 notice under the STPIM provisions. That provides us with a retention of six months prior to a national security determination being made, and is therefore in line with the provision under schedule 6 of the Terrorism Prevention and Investigation Measures Act 2011.

A separate provision for the retention of biometrics can be found in paragraph 22 of schedule 3. It provides for a retention period of three years for those detained under schedule 4 provisions, in line with biometrics collected under section 41 of the Terrorism Act 2000 and section 41 of the Counter-Terrorism Act 2008, which qualify terrorism offences.

Beyond the initial retention period, both provisions are capable of retention by way of a national security determination process. I have lost track—I do not know whether other Members have—of whether we are keeping biometrics for an initial six months, as schedule 9 seems to outline, or for three years, which is the case elsewhere in the Bill. I suspect the Minister is unable offer absolute clarity right now—although I have no doubt that the civil servants think it is absolutely crystal clear—but I would be grateful if he could outline, perhaps in writing, the rationale for the different provisions.

Government amendment 32 specifies that the chief constables of the Ministry of Defence police and the British Transport police, and the director general of the National Crime Agency, are added to paragraph 9(4) of schedule 9. The responsibilities of the Civil Nuclear Constabulary are different from those of other forces, but is the Minister certain that it does not need to be added to the list?

[Stewart Hosie]

I am aware that similar provisions were debated in relation to schedule 3, and concerns were raised then that the provisions may end up allowing the indefinite retention of the material of people who have accepted cautions—indeed, even youth cautions—meaning that they were never charged, never mind convicted. The Minister has not provided much of a justification for that, other than that he wants the legislation to mirror the provision in other Acts. He used the same argument in his introductory remarks.

That is not enough. Provisions on the ability to retain material indefinitely on whatever grounds must be justified in their own terms in this legislation. I know that the Minister is new to the job, so if he cannot do that now, he can write with that explanation, as the hon. Member for Halifax said. Notwithstanding the fact that we all want the maximum powers necessary to tackle the state threat and the terrorist threat, if his explanation is not compelling or convincing, the provisions will need to be revisited at a later stage.

National Security Bill (Twelfth sitting)

Holly Lynch Excerpts

Committee stage
Thursday 8th September 2022 Public Bill Committees

[The Minister for Security (Tom Tugendhat)]

Let me briefly say that we all pray for Her Majesty; it is an extraordinary moment. God save the Queen.

Clause 53 sets out how certain part 2 notices are to be served. A part 2 notice, an extension notice, a revival notice or a notice of a variation of the measures without consent must be served in person to the individual in order to have effect, whereas other notices may be served through the individual’s solicitor.

Schedule 5 contains a supporting power for the police to enter and search premises to find an individual for the purpose of serving a notice on them. This is so that the individual is informed in person and the implications of the notice can be explained to them.

Clause 53 also provides that when a subject is served the relevant notice they must be provided with a confirmation notice that sets out the period for which that notice will remain in force. This will give the individual certainty regarding the period of time for which the measures apply to them.

[Holly Lynch (Halifax) (Lab)]

Clause 53 states that a confirmation notice must be served on an individual who is served with a state threats prevention and investigation measure, or a revival notice or extension notice, setting out the period, including dates, for which the individual will be subject to the STPIM, unless it is quashed or revoked before its expiry.

We recognise the need for the clause, and it is right that there is a great deal of emphasis on serving the notice to an individual personally. There is, however, a distinct lack of detail in the Bill about who can serve a notice. Counter-terrorism police have again been very helpful in taking me through how such work might be undertaken operationally, but I put it to the Minister that it is not clear in the legislation that it would need to be a constable of a certain rank, or that it would need to be a constable. Other areas of the Bill do specify that.

It is not just a case of serving the notice: it is also the point at which a person is informed of the terms of the part 2 notice notice and presumably relocated and monitored to ensure their compliance with it. I wish to probe whether the provisions in clause 53 would benefit from being ever so slightly tightened up in that specific regard.

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[Tom Tugendhat]

I hope the right hon. Gentleman will forgive me, but I will have to write to him on that question. As for the question about the rank of the officer, a constable or any warranted officer is the answer.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

Clause 54

Contracts

[Holly Lynch]

I beg to move amendment 67, in clause 54, page 38, line 29, at end insert—

“(2) Within three months of the passing of this Act, the Secretary of State must publish a statement setting out how the Secretary of State intends to exercise the power under this section. The statement must include an list of illustrative examples of the kinds of contracts or other arrangements this power relates to.”

[The Chair]

With this it will be convenient to discuss clause stand part.

[Holly Lynch]

Clause 54 makes me uncomfortable and requires some thorough consideration. Amendment 67 seeks to flesh out some of the detail as to what the clause means in reality.

The explanatory notes say:

“This clause grants the Secretary of State authority to purchase services in relation to any form of monitoring in connection with measures specified in Part 2 notices. This would include, for example, electronic monitoring of compliance with the residence requirement provided for in Schedule 4.”

Frankly, the Government have a somewhat chequered history in awarding contracts, and while I will not go through the back catalogue, it is against that backdrop that we ask for more detail before we sign off on this clause. Section 29 of the Terrorism Prevention and Investigation Measures Act 2011 includes the same provision, so I hope that the Minister is in a position to share with us how private companies have been involved in the monitoring of those subject to TPIMs, so that we can gain a clearer understanding of how that would be replicated with STPIMs.

I am looking for reassurance on two fronts. The first is that we are not using contractors who are vulnerable to hacking or other forms of cyber-attack. There will be marked differences between the cohort of people currently subject to a form of monitoring—and even those subject to TPIMs—compared with STPIMs, which stand to present different challenges, so what tech will be used for monitoring someone subject to a part 2 notice, and how do we ensure that we, but no one else, knows where that individual is? I am assuming, based on what little we are asked to go on in the clause and explanatory notes, that we could be talking about wearable technology or monitoring hardware and software. I suspect that at least some component parts will be made overseas, if not all of them.

We sought to establish where the ankle monitors that are currently used come from. With some help from the House of Commons Library, we found that in November 2017 the Ministry of Justice awarded a contract for the supply of electronic monitoring services, which includes software and hardware, to G4S, and it appears to have been extended, but we could not establish where they were purchased from or just how robust they are. How do the Government plan to address that concern operationally and ensure that there are no holes to be exploited in the technology itself? How do we write those protections and technical specifications into contracts under clause 54?

Secondly, we are dealing with particularly capable people, potentially with the support of entire nation states. I want to know that our security services and trained police officers are undertaking this monitoring work, rather than private contractors who stand to be overwhelmed if not equipped and trained adequately. I had a look at what happens currently. The National Audit Office’s recent report published in June 2022, called “Electronic monitoring: a progress update”, states on page 22 that G4S supplies tags and home monitoring equipment as part of HM Prison and Probation Service’s tower delivery model for its tagging transformation programme.

HMPPS is an agency of the Ministry of Justice and is responsible for tagging. The report explains that the tower contracting approach has four different suppliers, each responsible for a different element of the national programme: supplying and fitting tags to offenders; running a monitoring centre; providing underlying mapping data; and providing the communications network. HMPPS acts as an integrator to co-ordinate work across the four suppliers. Can the Minister confirm that that is the same model, which has a number of private contracts and moving parts, presumably with the exchange of a lot of information between those moving parts, that we use for monitoring those subject to TPIMs, and that it is therefore the same way in which we will monitor people subject to STPIMs?

I would greatly appreciate some clarification from the Minister on that, to ensure that our national security cannot be outsourced and that we have specialist and trained people from our dedicated services undertaking this really important monitoring, using technology that can withstand the threat of outside interference. Given the situation in which we find ourselves, I urge the Minister to consider the merits of amendment 67.

[Tom Tugendhat]

Clause 54 grants the Secretary of State authority to use third parties to assist in relation to any form of monitoring in connection with the measures specified in part 2 notices. As the hon. Member for Halifax rightly identified, the electronic monitoring of compliance with the residence measure, such as by entering into a contract with a third party to provide tagging services, is exactly the form of contract that is envisioned. In practice, the Government will ensure efficiency by aligning, where possible, with existing contracts, and therefore may use ones that are already set up for comparable provisions in law, such as TPIMs.

The intention of the amendment is to seek clarity about what types of contracts the Home Secretary might enter into in relation to STPIMs and how she intends to exercise the power. Though the Government do not feel that publishing further detail on any such contract is necessary, I absolutely assure the Committee that the clause is not designed to do anything to outsource intelligence services. Instead, it is a standard approach that we have with TPIMs, where in some instances it is necessary for the Government to outsource some services. An example of such is the contract for ankle monitoring services to which the hon. Lady referred. She will be aware of my own views on outsourcing technology to various states; she can be absolutely assured of my own interest in making sure I prosecute this.

[Tom Tugendhat]

As the right hon. Member will be aware, in all such circumstances there will be a great variety, because what might be shared with somebody providing one service may not be the same as what is shared with another. It is also evident that the normal regulation on protecting privacy would apply where appropriate, and the Government would therefore abide with all due legal requirements. I cannot give a further commitment than that, for the obvious reason that the variety in which such contracting would apply is enormous. I can therefore only assure him that the existing previsions would endure.

[Holly Lynch]

I have listened carefully to what the Minister has said. He talked about the convenience of extending existing contracts; however, given the cohort of those who will be subject to STPIMs, that is the exact point that concerns me. We are talking about a volume of those who have committed more typical types of crime, but we need to think much more carefully about the types of technology, the software and the individuals involved in monitoring those subject to STPIMs.

Given the Minister’s reputation and understanding of the detail, and as he has already given me those assurances, I am willing to give him the benefit of the doubt that he will go back to officials and interrogate clause 54, so that he and I are satisfied that there are no vulnerabilities in that approach. I hope we can continue that conversation with the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 ordered to stand part of the Bill.

Clause 55

Legal aid in relation to Part 2 notices

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

[Tom Tugendhat]

I thank the hon. Member for Halifax; she can be assured that my commitment to protecting our security through electronic means, as through every other means, will endure.

Clause 55 will extend the scope of legal aid so that it will be available for state threats prevention and investigation measures. It will allow individuals to access legally aided advice and representation in relation to a part 2 notice, subject to means and merits tests. That replicates the position in the Terrorism Prevention and Investigation Measures Act 2011.

The measures are a civil order designed to protect and mitigate the risk to the public from individuals who pose a threat but cannot be prosecuted or, in the case of foreign nationals, deported. Legal aid will be made available in those cases due to the restrictive nature of the measures that an individual may be subject to. It is right that we balance robust investigation and prevention measures with the access to justice and judicial oversight that this House would demand.

[Holly Lynch]

As we have already heard, clause 55 inserts a new paragraph in schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2021, to enable individuals subject to part 2 notices to receive civil legal services in relation to those notices.

[The Chair]

Order. Will the shadow Minister speak up, for the benefit of colleagues at the back?

[Holly Lynch]

Thank you for that helpful observation, Chair; I will certainly will.

My hon. Friend the Member for Birmingham, Yardley will discuss part 3 of the Bill shortly. However, clause 55, which is in part 2, and clauses 62, 63 and 64, which are in part 3, pull in completely opposite directions in principle. Dare I say that it is almost as if they were produced by two different Government Departments that have not been speaking to each other?

[Maria Eagle (Garston and Halewood) (Lab)]

My hon. Friend is making an important point. Does she agree that the reasoning appears to be that this is such an intrusive and important provision, affecting people’s rights in such a potentially serious manner, that legal aid, subject to merit and means, ought to be available? Would that not also be an argument for getting rid of the whole of part 3 of the Bill?

[Holly Lynch]

My hon. Friend makes a really powerful point: there are very different principles evident in this element of part 2 compared to those in part 3. We will get into the details of part 3 shortly, but my hon. Friend is exactly right. Part 3 prevents civil legal aid from being available even to British children with any spent terror convictions, yet we are providing legal aid to those who we suspect of engaging in espionage on behalf of hostile foreign states. There is absolutely a powerful case for that, but my hon. Friend is right that that powerful case extends beyond the provisions in part 2 and should also be considered in relation to part 3.

There is a distinct lack of rationale and consistency in the proposals. When we continue into the debate on part 3, I would be grateful if the Minister could provide us with a greater understanding of why those differences occur in the Bill.

--- Later in debate ---

Clause 72 provides that the Secretary of State may, by regulations, make transitional or savings provision in connection to the coming into force of the Act. Transitional and savings provisions contain rules to ensure a smooth transition from the current law to the new law, for example, to transition from the current to the new prohibited places regime. Finally, clause 73 simply sets out the short title of this legislation. I hope the Committee supports clauses 65 to 73 of the Bill, along with the Government amendments that I have set out.

[Holly Lynch]

I am grateful to the Minister for that comprehensive run-through of the different elements within this part 4 grouping. I will speak to the collection of clauses and amendments, which encompass the remaining provisions in part 4. Clauses 65 and 66 give powers to the Government to consequentially amend legislation based on the content of the Bill. We spoke to the House of Commons Library in order to assure ourselves that this was a conventional allocation of powers, and did not go beyond what was necessary. I am grateful to the Library staff for their feedback.

Government amendment 64 provides that regulations made under the specified provisions for the foreign influence registration scheme, which we have not yet got to, are to be made using the affirmative procedure. It seems an odd arrangement that we are debating the process for the regulations without having first considered in detail the substance of those provisions. However, here we are. We will come to the FIRS provisions; despite how long the scheme has been in the pipeline, it is fair to say that a great deal of the detail of those measures is still to be determined—and is yet to be determined in regulation. It is right that they are subject to the affirmative procedure and to proper scrutiny when that detail has been worked through. We hear and understand that it may take some time yet, but it is an important point.

Further to Government amendment 64, there are two more provisions for regulations on registration information and information notices, which merit the same approach for the reasons I have just outlined. Our amendment to Government amendment 64 seeks to extend it only to ensure a consistent level of scrutiny of what will be serious new measures. It would allow the measures to be considered by hon. Members in Committee and would ensure that they deliver what is needed. On that basis, I ask the Minister to adopt our small, but entirely appropriate, change to Government amendment 64.

[Tom Tugendhat]

I am grateful for the hon. Lady’s point. I want to correct a comment that I made. I said the provisions apply to the Crown and this meant that Crown servants could not commit the offences. What I meant was they can commit the offences in the Bill, and that is the whole point of the regulation and this change to allow the freedom that is required.

Question put and agreed to.

Clause 65 accordingly ordered to stand part of the Bill.

Schedule 11

Minor and consequential amendments

Amendments made: 39, in schedule 11, page 141, line 29, after “offence” insert “under section 15 of the National Security Act 2022 or”.

This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “national security-related qualifying offence”.

Amendment 40, in schedule 11, page 141, line 30, leave out

“the National Security Act 2022”

and insert “that Act”.

This amendment is consequential on Amendment 39.

Amendment 41, in schedule 11, page 142, line 8, after “offence” insert

“under section 15 of the National Security Act 2022 or”.

This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “qualifying offence”.

Amendment 42, in schedule 11, page 142, line 8, leave out

“the National Security Act 2022”

and insert “that Act”.

This amendment is consequential on Amendment 41.

Amendment 43, in schedule 11, page 142, line 15, after “offence” insert

“under section 15 of the National Security Act 2022 or”.

This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “qualifying offence”.

Amendment 44, in schedule 11, page 142, line 15, leave out

“the National Security Act 2022”

and insert “that Act”.—(Tom Tugendhat.)

This amendment is consequential on Amendment 43.

Schedule 11, as amended, agreed to.

Clause 66 ordered to stand part of the Bill.

Clause 67

Regulations

[The Chair]

Does the hon. Member for Halifax wish to move amendment (a) to Government amendment 64?

[Holly Lynch]

I will continue to engage with the Government on that issue, but I will not move the amendment.

Amendments made: 64, in clause 67, page 48, line 25, at end insert—

“(za) regulations under section (Requirement to register foreign activity arrangements);

(zb) regulations under section (Meaning of “political influence activity”);

(zc) regulations under section (General exemptions);”

This amendment provides that regulations made under the specified provisions are to be made using the affirmative procedure.

Amendment 65, in clause 67, page 49, line 2, at end insert—

“(11) If a draft of a statutory instrument containing regulations under section (Requirement to register foreign activity arrangements) would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument.”—(Tom Tugendhat.)

This amendment provides that regulations under NC11 are not to be treated as hybrid instruments.

Clause 67, as amended, ordered to stand part of the Bill.

Clauses 68 to 73 ordered the stand part of the Bill.

New Clause 7

Obtaining etc material benefits from a foreign intelligence service

(1) A person commits an offence if—

(a) the person—

(i) obtains, accepts or retains a material benefit which is not an excluded benefit, or

(ii) obtains or accepts the provision of such a benefit to another person,

(b) the benefit is or was provided by or on behalf of a foreign intelligence service, and

(c) the person knows, or ought reasonably to know, that the benefit is or was provided by or on behalf of a foreign intelligence service.

(2) A person commits an offence if—

(a) the person agrees to accept—

(i) a material benefit which is not an excluded benefit, or

(ii) the provision of such a benefit to another person,

(b) the benefit is to be provided by or on behalf of a foreign intelligence service, and

(c) the person knows, or ought reasonably to know, that the benefit is to be provided by or on behalf of a foreign intelligence service.

(3) Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.

(4) A material benefit is an excluded benefit if—

(a) it is provided as reasonable consideration for the provision of goods or services, and

(b) the provision of those goods or services does not constitute an offence.

(5) A benefit may be provided by or on behalf of a foreign intelligence service directly or indirectly (for example, it may be provided indirectly through one or more companies).

(6) Subsections (1) and (2) apply to conduct outside the United Kingdom, but apply to conduct taking place wholly outside the United Kingdom only if—

(a) the material benefit is or was, or is to be, provided in or from the United Kingdom, or

(b) in any case, the person engaging in the conduct—

(i) is a UK person, or

(ii) acts for or on behalf of, or holds office under, the Crown, or is in Crown employment (whether or not they engage in the conduct in that capacity).

(7) In proceedings for an offence under subsection (1) by virtue of retaining a benefit, it is a defence to show that the person had a reasonable excuse for retaining the benefit.

(8) In proceedings for an offence under subsection (1) or (2) it is a defence to show that the person engaged in the conduct in question—

(a) in compliance with a legal obligation under the law of the United Kingdom,

(b) in the case of a person having functions of a public nature under the law of the United Kingdom, for the purposes of those functions, or

(c) in accordance with an agreement or arrangement to which—

(i) the United Kingdom was a party, or

(ii) any person acting for or on behalf of, or holding office under, the Crown was (in that capacity) a party.

(9) A person is taken to have shown a matter mentioned in subsection (7) or (8) if—

(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.

(10) A person who commits an offence under subsection (1) is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or a fine (or both).

(11) A person who commits an offence under subsection (2) is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine (or both).

(12) The following terms have the same meaning as in section 3—

“financial benefit”;

“foreign intelligence service”;

the “law of the United Kingdom”;

“UK person”.”

Brought up, and read the First time.

[Tom Tugendhat]

I beg to move, That the clause be read a Second time.

The new clause contains two offences concerned with obtaining, accepting, agreeing to accept or retaining a material benefit from a foreign intelligence service. These offences add to the new toolkit for law enforcement and the intelligence agencies in responding to espionage activity.

FIS operations in the UK run contrary to our safety and interests. In order to operate successfully, a FIS needs to recruit, fund and support networks of agents to support their undeclared activity in the United Kingdom. One of the most important motivating factors that a FIS is able to deploy to recruit agents is financial inducement or the provision of benefits in kind. It is often the case—this is reflective of the tradecraft of such organisations—that only the money or other material benefits can be evidenced to a satisfactory criminal standard. The new offence will enable early intervention to prevent further harm from being caused and will further strengthen our ability to prevent FIS activity, building on clause 3.

The first offence, in subsection (1), concerns a person who obtains or accepts a material benefit for themselves or another person, or who retains a material benefit, from a FIS. That could involve obtaining or accepting legal or school fees intended for someone else’s benefit. Some benefits are excluded benefits, which I will come on to in a moment. That offence would attract a maximum penalty of 40 years.

The second offence, in subsection (2), concerns a person who agrees to accept a material benefit from a FIS for themselves or another person, which is not an excluded benefit. This offence, where no benefit is obtained, accepted or retained, would attract a maximum penalty of 10 years. For both offences, the benefit must also be provided by or on behalf of a FIS, and the person must know, or ought reasonably to know, that the benefit came from a FIS.

We must be alive to the tradecraft of foreign intelligence services and their ability to adapt and potentially overcome any narrow definitions in this area. Accordingly, we have drawn the meaning of “material benefit” wider than just financial benefit. Material benefit will include money and money’s worth, such as gifts. It will also capture wider benefits such as information, including information on a business arrangement, as well as anything that has the potential to result in a financial benefit. We have safeguards in place to ensure that legitimate activity is not brought into scope of the new clause.

Subsection (8) replicates the defences in clause 3, which means that a person does not commit an offence if they are complying with a legal obligation, conducting public functions or acting in accordance with an agreement to which the UK is a party. As with other offences in the Bill, Attorney General consent must be obtained before prosecution.

In addition to those protections, the new offences have an additional layer of protection in the form of the excluded benefit for those who have legitimate reason for receiving a material benefit—for example, because they provide services to diplomatic missions in the United Kingdom that are known to accommodate declared intelligence officers.

Under subsection (4), a benefit is an excluded benefit if it is provided as reasonable consideration for the provision of goods or services and the provision of goods and services does not constitute an offence. For example, a shopkeeper does not commit an offence by selling groceries to a person who happens to be a member of a FIS. Another example of the type of contact that is excluded through this exemption is a person who lives in Northern Ireland and works in the Republic of Ireland for the police force.

The effect of introducing the concept of an excluded benefit will mean that in cases where someone is believed to have committed an offence of obtaining a material benefit, the prosecution would need to prove beyond reasonable doubt that the benefit was not an excluded benefit.

In addition to the concept of an excluded benefit, we have made provision for a reasonable excuse defence in subsection (7), which relates only to the offence of retaining a benefit contrary to subsection (1). This has been done to allow people who, for example, may be unable to return a benefit and so are forced to retain it. It will also enable law enforcement and the intelligence agencies to target those people who do not have a legitimate reason for retaining such a benefit. Although, crucially, subsections (4), (7) and (8) allow us to take a wide range of legitimate activity out of scope, we have been careful to ensure that the offence captures all types of activity we are concerned about.

The definition of a FIS would include a police force or other body with intelligence functions, which is the same definition found in clause 3. As I said when I introduced that clause to the Committee, we have drawn it in that way because it is increasingly common for organisations and foreign Government agencies to undertake activity more traditionally associated with intelligence services.

--- Later in debate ---

In summary, we must provide the tools for our world-class law enforcement and intelligence agencies, whose heroism and courage does so much to protect us, to respond to the modern espionage threat posed by foreign powers. We cannot allow covert intelligence activity in the UK to go unpunished, and nor can we allow UK nationals and companies, as well as embassy staff overseas, to be co-opted into working for a foreign intelligence service. Tackling the whole-state approach to state threats and espionage is of huge importance to protecting our safety and interests.

[Holly Lynch]

Before I turn to the detail of new clause 7, I appreciate that the Minister is not responsible for some of these challenges, but throughout the process of the Bill there has been a great deal of support for seeing the detail of the legislation scheme that makes up the basis of most of these new Government clauses. We probed consistently and asked that we could see the detail of that as soon as possible, given that as we came into the presentation of the legislation prior to Second Reading, it was a key factor that the Government promised would be a component part of the Bill.

The Minister’s predecessor, the hon. Member for Stevenage, made a commitment that that would be added to the Bill before we returned from recess for the second Committee sittings of line-by-line scrutiny. Most of the Government new clauses were tabled just last week—I think they were tabled last Tuesday and published on Wednesday. In that sense, his predecessor upheld that commitment in principle but not in spirit.

The new clauses were tabled only last week and there is a great deal in them to get through. We certainly want to support these provisions, but there is a lot to interpret and understand, and we want to have the opportunity to engage with those who can make use of these provisions so that we can do our due diligence at this point. I am not being unreasonable and I am being kinder to the Minister than the Chair of the Intelligence and Security Committee, the right hon. Member for New Forest East (Dr Lewis), was to the Minister’s predecessor’s predecessor, the right hon. Member for East Hampshire (Damian Hinds), on Second Reading, but I want to put it on record that we may be forced to return to the Committee with more detail once we have had the opportunity to consider these provisions further.

Turning to the detail, as the Minister has said, Government new clause 7 creates new offences of obtaining, accepting, retaining and agreeing to accept a material benefit from a foreign intelligence service. The clause is explicit in referencing material benefits from a “foreign intelligence service”. In relatively recent instances finances have been traced back, not to intelligence agencies as such but to forms of Government Departments, such as the United Front Work Department, referred to by the Chinese Communist Party as one of its “magic weapons”. Are the definitions in this clause too narrow to capture those kinds of transactions?

Subsection (7) says:

“In proceedings for an offence under subsection (1) by virtue of retaining a benefit, it is a defence to show that the person had a reasonable excuse for retaining the benefit.”

Given just how tight the definitions in relation to this offence are as the Bill stands, referring exclusively to a foreign intelligence service, I am keen to understand what might constitute a “reasonable excuse” in that situation.

We have worked through the notion of and the thresholds of proof around the phrase “ought reasonably to know” in earlier proceedings of this Committee, which I appreciate the new Minister might not yet be across. In subsections (10) and (11), pretty serious custodial sentences are outlined, as the Minister said, for committing offences under subsections (1) and (2). So I would be grateful to learn what the fines would be for those offences.

A query was also put to me following a specific overseas case as to whether someone who is in receipt of benefits of a sexual nature could be prosecuted under this new clause. If someone were to offer sex in exchange for information in such a way that it could be proven that they knew or ought reasonably to have known the purpose of that activity, could that lead to a prosecution on the basis of the sex being a material benefit, in principle, under the Government’s new clause?

[Mr Jones]

I broadly welcome the new clause, because it is obviously another weapon in the armoury to counter foreign state interference, but I just want some clarification to be made in terms of the broad nature of what is actually being proposed.

One of the examples that I want to raise is the issue of academia. As my hon. Friend the Member for Halifax has already said, the United Front Workers Department of the Chinese Communist party is active across the globe and influencing academics and even legislators here in this country and in other countries, for example, Australia. So I just want some clarification about how someone would get caught under this measure.

As I say, one example is academia. I cannot remember who—I was trying to rack my brains to think of the name of the academic at Harvard University who I think is currently being prosecuted in the United States. It relates to the definition of “intelligence service”. We know that the Chinese Communist party does not work directly; it will work through front organisations. As I say, I am trying to think of the name of the academic in the US; it will come back to me in a minute.

However, let us suppose a British academic is approached by an entity in China or an individual based here, who then says to that academic, “Will you do some academic research? Will you write a paper for us?” And they give the academic money for that. There are examples of this happening, and I think that in the example from the United States, which is currently ongoing, the academic then received a retainer for providing research information for a Chinese university. I think there is evidence that suggests that that was a way in which the Chinese Communist party or the Chinese security services were funnelling money to academics.

I would be really interested to know how we will differentiate between the academic who quite clearly wants to do research, and co-operation with China. The benefit they get—for example, being paid for a visit to a conference, for an academic paper or for research—does not fall within the scope of this measure, because, to be fair to the academic, the source of the funding might not be clear—it might be clear in some cases, but not in all.

I can understand if, for example, the security services approach an academic and say, “Are you aware that your money for your paper is coming from x intelligence agency?”, and the academic says, “Oh well, I’m not bothered. I’ll keep on doing it.” That is fine. However I just want to know—and I think some guidance has to be given to academics.

The other example is a bit closer to home, which is my hon. Friend the Member for Brent North (Barry Gardiner), who received large amounts of money from a woman called Christine Lee. She made quite a substantial donation for him to run his office. I am still baffled as to the reason why, but still. It was proven later that that she was working on behalf of the Chinese Communist party and the Chinese Government. Would an individual like that—a Member of Parliament—be dragged into this, under the new clause?

Certainly, I am sure that most of us, if someone offered us half a million pounds, would actually want to know why we were getting it, but people make their own decisions. Would that be classed under this? There are clear examples of the Chinese in particular using academia as a cover for intelligence gathering and actually funding things that will obviously influence, such as stealing academic research. For example, if a paper is normally worth £1,000 and someone is getting £20,000 for it, does that mean that the rest is a bung and that they should really raise questions about it? I doubt many academics are going to be saying, “I am not worth £20,000”. It comes back to the point on this, which I would like some more information on. I am not against what is being proposed, but I think that it has some issues that will raise alarm bells in certain sections, and academia is certainly one of them.

--- Later in debate ---

[Tom Tugendhat]

The right hon. Gentleman is exactly right. The point of the defence of “reasonable” is that, in order for this to be an offence, the individual needs to be aware that the benefit is supplied by a foreign intelligence source. Therefore, so long as they are unaware of it, it is not an offence. When they become aware of it, it is an offence.

The last point that I wish to make is on the delays. I know that the hon. Member for Halifax will understand that the Ukrainian situation, and a certain change of Government office holders most recently, may have interrupted the provisions. However, on that note—

[Holly Lynch]

Before the Minister closes, will he take an intervention?

[Tom Tugendhat]

Yes.

[Holly Lynch]

I am really grateful to the Minister. I appreciate that he is winding up. I think, if I have understood his response to my question about sex in exchange for information, that, for something to be a benefit, it would have to have a monetary value. Therefore, if there was an exchange of sex for information, that could not be prosecutable under this new clause.

I just wanted to say that because a case was brought to my attention. Partly because I am reluctant to gather any further information by typing the word “sex” into a search engine on the parliamentary estate—I am always incredibly reluctant to do that, for obvious reasons—I could not establish any further details about a specific case. Will the Minister undertake to have a look at that in a bit more detail, just to ensure that we have not missed anything through narrow definitions within this clause?

[Tom Tugendhat]

The hon. Lady can be absolutely assured that there is no way that I would like to leave out any form of inducement that a foreign intelligence service could use to entice somebody to commit a serious crime. Therefore, of course, I would be very happy to look into that.

The clause, as written, says:

“Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.”

Therefore, it is pretty broadly worded. I will talk to officials about how we could make it clearer if that is necessary, but I will certainly undertake to do that. Before I sit down, I will just say, God save the Queen.

Question put and agreed to.

New clause 7 accordingly read a Second time, and added to the Bill.

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

National Security Bill (Thirteenth sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Tom Tugendhat]

Thank you very much for chairing this sitting, Mr Gray. It is a pleasure to be here under your chairmanship, and a great pleasure to introduce new clause 8 and new schedule 1, which introduce a suite of measures to allow law enforcement officers to apply to the courts for orders to gather information that will assist investigations into foreign power threat activity. As with the other police powers in the Bill, the Government have carefully considered relevant existing legislation, and looked to emulate it where it has proven effective in investigating other serious crimes. I will first speak more broadly about the need for the measures as a whole, before turning specifically to disclosure orders.

Most modern investigations include lines of inquiry into finances and other property, sometimes as a starting point and sometimes to enhance other leads. Financial investigations are often critical in developing evidence that is used in criminal proceedings where there is a financial element, by identifying and tracing criminal assets and uncovering the extent of criminal networks. Financial investigation has become increasingly important in criminal investigations in recent years.

In his recent letter to the Committee, the national lead for counter-terrorism policing, Matt Jukes, stated that it can be difficult for his officers to conduct effective investigations into state threats with the current powers and tools available, and that police would greatly benefit from the inclusion of financial investigative measures. The police have stated that these lines of inquiry are particularly important in state threats cases, where actors may be motivated by financial gain but also where they deploy sophisticated forms of tradecraft, meaning that their criminal conduct is even more difficult to uncover, disrupt and evidence than for other crimes. In many cases, financial and property investigations form an important part of establishing the link between the activity and the foreign power, particularly regarding investigations into obtaining material benefits from a foreign intelligence service.

Investigations into property and finances can take place in relation to any form of criminality, but Parliament has already recognised, in both terrorism legislation and the Proceeds of Crime Act 2002, that there are certain circumstances where it is appropriate for investigators to have access to broader investigatory powers. The Committee has also recognised, in particular during our debates on schedules 2 and 3, that state threats investigations are an area where it is appropriate for investigators to have access to enhanced powers. The addition of these new financial and property investigation powers in relation to foreign power threat activity will ensure that law enforcement has the tools it needs to effectively conduct state threats investigations, prevent and mitigate harmful activity and bring those responsible to justice.

The Committee will note that these new powers are available to National Crime Agency officers, reflecting the Government’s intention, as set out in the integrated review of defence and security, to ensure that the NCA has the capabilities that it needs and to pursue greater integration where there is an overlap between serious organised crime, terrorism and state threats.

I want to take this opportunity to inform the Committee that as we have finalised these provisions, we have identified other areas in the Bill where the drafting needs to be tailored to ensure that it is consistent regarding the availability of the powers to the NCA. These small amendments will be addressed on Report.

Turning to disclosure orders, as we have discussed in Committee, schedule 2 provides for a number of powers that law enforcement can use to obtain information in state threats investigations. Law enforcement investigators require disclosure orders for state threats investigations in order to access non-excluded material by compelling individuals or organisations to provide information to investigators. It is important to note that disclosure orders cannot compel someone to answer any question or provide information that is legally privileged, or to produce excluded material. Excluded material is defined under the Police and Criminal Evidence Act 1984 and includes personal records relating to physical or mental health obtained in the course of a trade or profession, human tissue held in confidence and taken for the purposes of diagnosis or medical treatment, and journalistic material held in confidence. If excluded material were required by investigators, a production order under schedule 2 would be required.

Much of the information that investigators seek under a disclosure order may be considered confidential in nature, such as payment details, but is not classed as excluded material. That may be required because the police have previously approached an organisation to ask for the non-excluded material to be provided, but the organisation has refused because it does not consider that it should disclose the information in the absence of a clear power of compulsion. It may be because the police are conducting a complex investigation involving several organisations that could require multiple requests for information over time. In such a scenario, which is likely to occur in state threats investigations, the police require a streamlined process whereby one order is available to cover separate requests for information from multiple organisations without creating an undue administrative burden on law enforcement, the courts or those who might receive such requests.

In the absence of a disclosure order, a schedule 2 production order, if applicable, would need to be made for every request for information, requiring a large amount of police resource as well as court time. Disclosure orders streamline this process and reduce the numbers of orders needed for requests for non-excluded material during an investigation. For example, if the police were conducting a state threats investigation into an individual and needed to access information from several airline companies regarding the suspect, the company may be willing to provide only basic customer information, such as the full name, without a formal court requirement. If the police required access to the suspect’s payment information used for a plane journey that is suspected of being related to state threat activity, the company may refuse to provide that information, even if investigators provided the company with reassurance that providing this information was in the interests of the prevention of crime. Executing a warrant on the company may be possible, but may not be an appropriate course of action by the police. In some cases, a production order under schedule 2 might be available, but that will not always be the case. Disclosure orders will provide a more proportionate and appropriate way of providing investigators with the information required.

In another example, the police may suspect that a person is purchasing a specialist piece of computer equipment to use in the commission of a state threats offence. The police suspect that the equipment has been purchased from one of a small number of possible companies. In that case, a single disclosure order could be sought, enabling the police to seek information from the companies in question, instead of the police needing to seek multiple production orders.

We recognise that these orders could enable the police to give a notice to a wide range of organisations. As such, senior authorisation is required within law enforcement before an application can be made to the courts. In addition to the requirement for senior authorisation, a disclosure can be made only in relation to an investigation into the identification of state threats property, which is defined as money or other property that could be used for the commission of foreign power threat activity, or the proceeds from such activity. This restriction to investigations into relevant property reflects the scope of the equivalent powers in terrorism and proceeds of crime legislation.

Furthermore, the judge must be satisfied that there are reasonable grounds for believing the information being sought would be of substantial value to the investigation, and for believing that it is in the public interest for the information to be provided, having regard to the benefit of the investigation. Disclosure orders provide for an effective and flexible means of obtaining information in a state threats investigation. Sitting alongside the powers of schedule 2, they would ensure that investigators have efficient and effective access to the information that they need to conduct their inquiries.

[Holly Lynch (Halifax) (Lab)]

It is always a pleasure to serve under your chairmanship, Mr Gray. I also welcome hon. Members back to the final day of the Committee. We welcome new schedules 1, 2 and 3, and hope that they will reflect the complex and evolving nature of state threats, and the significant technical and financial resources that provide the capability for sustained hostile activity.

For too long, our police and security services have had to use blunted tools in this regard, not designed to address adequately the challenges posed by modern day espionage. We are grateful to Counter Terrorism Policing for submitting written evidence to the Committee, and making its support for the new schedules 1, 2 and 3 very clear. Frankly, the Met provided far more in its written evidence on the rationale of these provisions than the explanatory notes accompanying the new schedules from the Government—a point made by my right hon. Friend the Member for North Durham.

The fairly non-existent explanatory notes are a constant challenge from this part of the Bill onwards, affecting later amendments, which is disappointing for all hon. Members trying to follow the detail closely. As the Minister said, Assistant Commissioner Matt Jukes said in his written evidence to the Committee:

“We have requested financial investigation powers to support our investigations in this space. To this end we have articulated a clear requirement to emulate various investigatory powers within the Terrorism Act which centre on financial investigations as well as examination of material which can be used for investigatory purposes. We are assured that these will be introduced by way of a forthcoming amendment. If so, this will further ensure that we have the tools required to successfully investigate and disrupt state threat activity.”

We welcome the new schedules, and now that the long overdue Economic Crime and Corporate Transparency Bill has been published, no doubt the new schedules are intended to work alongside some of the part 5 provisions in that legislation. Currently, terrorism disclosure orders can be made under schedule 5A of the Terrorism Act 2000. Counter Terrorism Policing has called for an explicit disclosure order for state threats, stating that it will help investigators benefit from a streamlined process, whereby one order is available to cover separate requests for information from multiple organisations, without the need to return to court. I want to push the Minister on oversight. I have made the case for an independent reviewer of all the new measures in the Bill. As those will be investigatory powers, will the Minister confirm that the investigatory powers commissioner will have responsibility for overseeing their use?

Turning to paragraphs 7 and 17 of new schedule 1, paragraph 7 outlines offences in relation to disclosure orders. Sub-paragraph (3) states that a person commits an offence if

“in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.”

By comparison, paragraph 17(1) states that a

“statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.”

I cannot quite square that off. I am keen to better understand why the information provided by a person under a disclosure order could not be used as evidence in criminal proceedings.

Before concluding, as I have said before, I accept that it is standard to refer to a police officer as “constable” in legislation, despite the fact that in doing so we are referring to police officers of any rank, not the rank of constable, which seems problematic. New schedule 1 is a prime example of where it gets messy. Paragraph 1(5) says that an appropriate officer for the purposes of these powers is either a constable or a National Crime Agency officer. It is not until paragraph 2(10) that the provision states that an appropriate officer must be a senior officer or authorised by a senior officer. Not until paragraph 9(4) does it confirm that “senior officer” must be a superintendent or above. Would it not be clearer to be explicit about the stipulated rank required to exercise certain powers at the earliest opportunity, instead of allowing for the ambiguity of the word “constable”? The last thing any of us want is for any ambiguity to be exploited by defence lawyers in the courts.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Gray. My apologies for missing the previous Committee sitting. I can now welcome the Minister to his place at this very interesting and challenging time. I do not doubt that we wish him well. We have a tricky job in Committee today. We are looking at fairly substantial new schedules and new clauses for the first time. It would be helpful to hear what the Minister has to say about them. On the whole, we are supportive of most of what we will be discussing today, but we will have to take away what the Minister says and consider it further. Ultimately, we reserve our position until the Bill reaches its final stages in the House of Commons.

The Minister has outlined a number of case studies and scenarios to illustrate how this new clause and new schedule would work. More of that information would be really helpful to understand what the Government are getting at. With that proviso in mind, we would say that new schedule 1 seems to provide the necessary powers to investigate foreign threat activity. The Minister referenced the fact that this was based on other provisions, which is interesting to know, but I two have two or three questions about precisely what statute and provisions these measures are modelled on. Some of them seem fairly unusual, so it would be useful to know where else they can be found in order to analyse how they work there.

The Minister provided some examples of how the new clause and schedule would work. The first question is how is it to be decided that property is

“likely to be used for the purposes of foreign power threat activity”

or proceeds of that? Is that essential analysis to be based on the nature of the property, or is more required, such as intelligence about who may have had ownership or possession or some other link to it? Again, the illustrations which the Minister gave during his introductory speech may answer that question. I will have to go away and have a think about that, but the more illustrations we can have, the better. Otherwise, his scheme seems pretty reasonable.

I have a couple of questions about some of the supplementary provisions. Is there not an issue with being able to ask questions that could lead to self-incriminating answers? I think the shadow Minister almost had the opposite concern from me. She asked why that would be protected from use in a criminal trial. My question is about whether the safeguard goes far enough. The Government are basically saying that someone can be asked a question that may lead to a self-incriminating answer. There are protections elsewhere in paragraphs 8 and 17 of the new schedule about the non-use of those statements, but is this formulation used in other legislation? It would be useful to have a specific reference to a provision in another Act of Parliament.

In a similar vein, what is the thinking around ensuring that disclosure orders have effect, despite restrictions in another enactment? That seems a very broad provision. Again, is that found elsewhere in another piece of legislation? What other Acts of Parliament are going to be impacted or undermined by this? Finally, part 2 includes the provisions in relation to Scotland and how these would be put into practice. I wanted to check that there has been consultation with the Scottish Government. The broad thrust of new schedule 1 seems fine, but there are one or two questions for the Minister.

--- Later in debate ---

[Tom Tugendhat]

I beg to move, That the clause be read a Second time.

New clause 9 and schedule 2 seek to insert customer information orders into the Bill as part of the suite of investigatory measures. Those who engage in state threats activity are highly trained individuals who have knowledge of tradecraft that can obfuscate their identity and real intentions.

For example, the tradecraft could be used to conceal transactions by creating secret bank accounts under false identities, or accounts registered to different addresses, in order to send or receive money for conducting activity. The operational objective of a customer information order is to enable an investigator to identify accounts and other account information in relation to state threats investigations. For example, this could be where a foreign agent is paying others to conduct state threats activity in the United Kingdom and police need to identify where the agent’s account is held, or it could be where a suspect is using a covert account under a false identity to receive funds to use for the purposes of state threats activity.

The customer information order is therefore intended for use as a tool of discovery during an investigation, often in the early stages. Once accounts have been identified through a customer information order, they could, where appropriate, be subject to further monitoring or investigation through a schedule 2 production order or an account monitoring order. Without customer information orders, accounts used by those conducting state threats activity may go unidentified, reducing investigative opportunities and, in turn, the ability for law enforcement to disrupt harmful activity and bring offenders to justice. We recognise that such orders could potentially require any financial institution to provide information about relevant customers. As such, senior authorisation is required within law enforcement before an application can be made to the courts.

We expect that, in practice, the powers will be used by police and NCA officers who have received relevant financial investigator training, and we are continuing to work with the police and NCA on creating the relevant guidance. Again, we have modelled the provisions on the terrorism equivalent and the measures used in the Proceeds of Crime Act 2002, and the consistency of these processes will ensure that law enforcement officers can make the most effective use of the powers. As I have set out, the customer information orders are another important investigative tool, opening new lines of inquiry and ensuring that law enforcement can run effective state threats investigations.

[Holly Lynch]

New clause 9 and new schedule 2 establish customer information orders, which authorise the police and NCA officers to obtain customer information from financial institutions. In its written submission to the Committee, for which we are all grateful, Counter Terrorism Policing has welcomed the provision, stating that it will

“enable investigators to identify accounts in relation to state threat investigations, or where an individual is using a covert account under a false identity to receive funds to use for the purposes of state threats.”

As the Minister outlined, the tool has been available to law enforcement for terrorism investigations thanks to schedule 6 to the Terrorism Act 2000, and it has been available for criminal investigations through the Proceeds of Crime Act. However, according to Counter Terrorism Policing, it has not been possible to use either Act in relation to state threats investigations, so we welcome the provision. It prompts the question of why we have not addressed this issue sooner.

Subsection (2) states that the judge may grant the order if they are satisfied that

“the order is sought for the purposes of an investigation into foreign power activity”,

and that

“the order will enhance the effectiveness of the investigation.”

We have spoken a lot about the value of an independent reviewer, and I welcome the substance of the Minister’s comments. It is worth keeping under review the threshold of a judge being satisfied that the order is sought for the purposes of investigation into foreign power activity. We cannot use these orders without good cause, but if we need them to be able to find evidence of foreign power activity, will investigators be able to satisfy a judge prior to that? It will be interesting to see how many applications are granted and rejected once we start to work with the orders. Aside from those points, I am happy with new schedule 2.

[Stuart C. McDonald]

I will make a couple of brief points. The broad thrust of the new schedule and the intention behind it seem absolutely fine, but I am interested in the tests that must be satisfied before an order is made. Under the previous schedule on disclosure orders, the judge has to be satisfied that there are reasonable grounds for suspicion, that there is substantial value in the information gained under the order and that the order would be in the public interest.

In contrast, here in new schedule 2, the judge has to be satisfied only that the order is sought for the purposes of an investigation and that it will enhance the effectiveness of that investigation. That seems a pretty low bar to allowing this pretty invasive procedure to be gone through. Why that choice of language? I guess it is modelled on the provisions that have been mentioned. I have probably not been as diligent as the shadow Minister has in doing my homework and tracking through the previous bits of legislation, and I will now do that. The information gained under these orders could be pretty intrusive, so we need to ensure we are not giving carte blanche to all sorts of intrusive investigations. I am a little bit concerned about the low level of test, compared with the test for disclosure orders.

My second, brief point is that paragraph 4 of the new schedule suggests that the person whose records are about to be trawled through can seek to vary or discharge the order. It is not clear to me how they would go about doing that, given that I suspect most orders will be made without any notice, and they can even be made by a judge in chambers. What assurance can we have that people will be able to challenge this potentially intrusive investigation?

--- Later in debate ---

The process for applying for an account monitoring order will broadly follow that used in terrorism cases and investigations under the Proceeds of Crime Act 2002. That means that applications are subject to judicial approval and only available where the judge is satisfied that the order will enhance the effectiveness of an investigation into foreign power threat activity. Police have stated that this order is a critical tool required to successfully investigate offences within the National Security Bill, and that account monitoring orders may assist investigators in preventing harmful activity from occurring.

[Holly Lynch]

In our debates on new schedules 1 and 2, we have been through arguments similar to those that apply to new schedule 3. Once again, CT Policing states that these account monitoring orders will provide:

“investigators with real-time information that can be used to react quickly and intervene if necessary, potentially stopping the state threat activity from taking place.”

Of course, that is enormously welcome. I draw the Minister’s attention to one small matter, concerning the use of the word “constable”. For account monitoring orders, new schedule 3 stipulates that an appropriate officer is a constable or an officer of the NCA under paragraph 1(3). When we get to interpretation, paragraph 7(2) states:

“‘Appropriate officer’ has the meaning given by paragraph 1(3)”,

which refers us back to the word “constable” with no stipulation about rank whatsoever. That is very different from the requirements in new schedules 1 and 2, which stipulate that the officer needs to be a senior officer, meaning a superintendent or above. Is this an oversight? Should the officer be a senior officer, in line with new schedules 1 and 2, or can a police officer of any rank apply for an account monitoring order?

[Mr Jones]

These are sensible proposals to give our law enforcement agencies the powers they require, but I would like clarification about definitions. The Minister referred to a bank, and it is clear that this is about monitoring bank accounts. The explanatory statement, expansive as it is—I think it is one line—says:

“These orders may require financial institutions to provide specified information relating to accounts.”

I want to clarify the definition of financial institution. If we go back 20 or 30 years, it was quite clear: we had bank accounts and financial products. Today, though, there is a complex environment of organisations that work and deal with financial accounts. For example, Bitcoin is now traded between organisations, some of which are covered by the Financial Conduct Authority and others not. I am trying to get some understanding of how widely this will go.

The other issue is about bank accounts that are not in the UK. I am particularly thinking about bank accounts in the overseas territories, and what happens there. We need clarification about the remit. The measure might work very simply with banks and other financial institutions, but in an ever-changing world we have a lot of organisations that deal with people’s “accounts” where they are not regulated.

--- Later in debate ---

[The Chair]

If the Minister so moves, it would be a question of starting 15 minutes later and ending 15 minutes later this evening.

Ordered, That the Committee shall meet at 2.15 pm until no later than 5.15 pm.—(Tom Tugendhat.)

[Holly Lynch]

I have listened very carefully to everything the Minister has said. I will speak to all of the new clauses in the group, which is the first of several additions to the Bill concerning the foreign influence registration scheme, as well as raising some more general issues which will need ironing out about the scheme as we move into this section of the Bill. First, I assure our Australian friends that beyond making sure that we have provided our scrutiny and ensured that the registration scheme does everything that we need it to do, we are very much in support of the introduction of it.

I appreciate that the Minister is not responsible for the publishing of the provisions after Committee stage has already started, but I am going to have to come back to the issue of explanatory notes. To assist the Minister, I suspect that the feedback he has had from his officials is that it would appear we only get a technical explanatory statement when an amendment is published on the amendment paper. The more complex explanations are in the explanatory notes published alongside the Bill. I expect that that is the way it has happened in the past, in anticipation of Governments not tabling substantial additions to pieces of legislation so late in the Commons scrutiny process. That may be the feedback he has had from his officials. However, so important are the types of explanations and examples that we are asking for, I do not think that there would be anything out of order if those examples were provided to Members of the Committee directly, or that anything prevents that.

[Mr Jones]

Also, a commitment was given on the Floor of the House on Second Reading that those notes would indeed be introduced. There is no real reason why those explanatory notes could not have been produced.

[Holly Lynch]

My right hon. Friend is quite right. Let me turn to the explanatory notes provided with the Bill as examples, for instance. If person A is contacted by person B to organise activity X, those examples are on page 14, 16, 17, 18 and so on, to try to add some colour and operational understanding of part 1. We have then got nothing to accompany an outline in real-world terms of how so many of these provisions about the foreign influence registration scheme, which is complicated, for the reasons that hon. Members have already outlined, would work in effect. I just put it on the record that that has been a real frustration for Committee members and is disappointing. We understand from officials that efforts will be made to correct it by the time the Bill gets to the Lords, but that is of no use to us, so let me gently suggest that some of those examples be provided before we get to Report, which I know would be enormously welcome.

--- Later in debate ---

[Mr Jones]

I am sorry; it is an odd quote. That will be the test for tier 1: to make sure that it is publicly available and people know it and can see. That has worked in both those systems.

I have real problems with the secondary tier. I understand what the Government are trying to do, but they are making it very complicated. I worry that we are putting in provisions that will not be helpful in practice. It goes beyond political influence, for which I think there is a need. One example is acting as a foreign intelligence officer. Those arrangements need inquiry, but we are left not really knowing, because a lot of that will be looked at in secondary legislation, and it does not apply to all countries. That will create some problems. I have already mentioned the diplomatic problems when a country is added to that list.

When I met officials yesterday I used the analogy of being put on the naughty step: there is no real understanding of what criteria would be used to do that. I have no problem with the Minister’s robustness in using this measure, but because it is getting into economics and other areas, there will be huge problems with pressures from the Department for Business, Energy and Industrial Strategy, the Foreign and Commonwealth Office and others. I would like to understand what a country would have to do to get on the naughty step.

On named countries, I am sure the Minister will not mention the exact countries today, but once the Bill secures Royal Assent, are there any countries that will automatically be added? I am sure no one will be surprised to see North Korea on it. The more problematic country is China, on which I know the Minister has strong views. That will create some problems. I am struggling to understand which countries will end up on this tier.

How will the list work in practice? If the Minister were to put a country that is hostile to us on this list, that is one thing, but what happens if the relationship with that country changes? The example I gave to officials was Iraq. During the Iran-Iraq war, it was our ally. When it invaded Kuwait, it was certainly not our ally. What would be threshold to take someone off that tier? What is the practical way in which that will be done?

[Holly Lynch]

My right hon. Friend is making a powerful case for doing things slightly differently. In the conversations we have had with officials, one of the issues we have worked through is, if our relationship changes with a country at quite a pace, how quickly could we make additions to that enhanced tier to reflect that? Some of the feedback was that it could take a number of weeks, if not months, to address that through the enhanced tier. Is that another area of consideration that we would like to get a grip on?

[Mr Jones]

My hon. Friend makes an interesting point. That is why I do not think the provision will be used in practice. That is the problem and, as I have said, I am never in favour of putting such provisions on the statute book. A more narrowly defined set of criteria applied to all countries would be better than the complicated system that we have here.

The other point is about transparency. Clearly, the public record for tier 1 will be there—it is published. Why the second tier should be done differently, I do not know. The information is going to get out anyway. It is not going to be a great surprise if a company is on this list. If I was running a company and was suddenly put on the register, I would not tell people that—I would not tell the investors and shareholders. I do not understand why the Government are treating the second tier differently from the first tier.

National Security Bill (Fourteenth sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[The Minister for Security (Tom Tugendhat)]

I pay tribute to the hon. Member for Garston and Halewood and the right hon. Member for North Durham for the tone with which they have approached the debate. I appreciate their comments and those of the shadow Minister, who has made similar points. They have made them in the spirit of openness, proper debate and trying to improve what they see, correctly, as a Bill that will keep our country safe. I am grateful to them for that.

I will go through some of the points that have been made. First, the right hon. Member for North Durham asked about the purpose. Part of the objective of registering under the scheme is to highlight and to be clear. This is not a sanction. The very fact that a scheme exists for foreign companies that trade with British companies does not in any way mean that it is a sanction. The intention is to bring transparency to relationships that might otherwise lie hidden. It is intended not as a punishment, but merely to promote openness.

The requirement to register an arrangement within 10 days is made so that the person acting on behalf of the Government, or the individual, makes that clear at that point or within a reasonable period of time. I am happy to hear arguments for a slightly longer or less long period, but I think 10 days is a reasonable period for a registration to be made. Again, that is not supposed to be a sanction or an obstacle, but it is merely supposed to be a way of achieving transparency. It is not really supposed to be stopping the entire process, but merely supposed to be enabling people to know what is going on. If there was a requirement, and if it was a sanction, that would be different and the process would have to stop immediately. That is not what this is about.

[Holly Lynch (Halifax) (Lab)]

Will the Minister give way?

[Tom Tugendhat]

Briefly, because we have so much to get through.

[Holly Lynch]

Of course, and I am grateful. May I bring the Minister’s attention to an example that I have had a chance to look at, and which has broken today? Up to 30 former UK military pilots are thought to have gone to train members of China’s People’s Liberation Army. They have been offered lucrative packages of up to £237,000 for their expertise in training Chinese pilots. Actually, a Ministry of Defence spokesperson has said that they are attempting to disrupt that activity

“while the new National Security Bill will create additional tools to tackle contemporary security challenges—including this one.”

Just looking at that example of where presumably some of those involved in headhunting might need to register that activity—

[The Chair]

Briefly.

[Holly Lynch]

There is a need to try to put a stop to some of this activity, and I just wonder what the relationship is between the visibility and the need to stop it.

[Tom Tugendhat]

As the hon. Lady will know very well, I share her deep concern at this information, which was reported just this morning. First, may I say that there are already many different clauses in the Bill that are designed to make sure that individuals should not be co-operating with those who may be trying to steal secrets or to gain from secret information. It is possible, although I have not got the details of the case, that similar sorts of cases may be covered under other clauses in order to prevent the acquisition of information. The foreign agents element—the foreign influence element—would also come to play, but it is not the only element in the Bill that would come into play. It is absolutely correct that we do need the Bill in order to prevent such actions, which at the moment are more loosely defined, and therefore possible. The foreign influence element is not the only element, but I appreciate the spirit in which the hon. Lady has entered the discussion.

If I may, I will speed up a little.

--- Later in debate ---

[Holly Lynch]

I thank the Minister for giving us a comprehensive understanding of this group of new clauses. Before I talk about them, it is crucial that we have clarity on the outstanding issue of when an arrangement has been registered, because new clause 12 creates an offence of undertaking such activity before it has been registered. I put on record that the Minister was not able to respond to that point and said that he would follow up in writing.

It feels as though there has been a surge in hostile states seeking to infiltrate our political discourse. They are prepared to allow years for their efforts to bear fruit, in an attempt either to align our values with theirs or to sow division and polarisation across our country. That has become more salient following Russia’s abhorrent invasion of Ukraine.

Only days ago, a report from a German newspaper stated that the Federal Office for the Protection of the Constitution is looking into the case of two civil servants who

“are involved with energy supply in key positions”

and are suspected of having Kremlin links, and I think a further and even more serious report from Germany has just broken. The allegation is that these individuals were advocates of Russian gas and highly supportive of Nord Stream 2. If confirmed, this case would represent exactly the type of security breach we have to protect ourselves against. Without wanting to repeating myself, there is just a single line in new clause 15 on the meaning of “political influence activity” by way of explanatory note. It is a crucial but operationally complex area.

I want to pull out subsection (6) of new clause 14, which explicitly states that the requirement to register a foreign influence arrangement does not apply to “a recognised news publisher” or

“a person who makes a foreign influence arrangement with a recognised news publisher where the purpose, or one of the purposes, of the arrangement is the publication of news-related material.”

Many civil liberties organisations and the National Union of Journalists have expressed concern over the need to ensure press freedom in relation to this Bill. That is absolutely right, and the Minister quite rightly put his strength of feeling about that on the record. But how do we protect ourselves and ensure transparency when blatant mouthpieces for hostile states present as news outlets, or when someone on the payroll of a hostile state seeks to place their pro-regime opinion pieces or articles in mainstream media? We have had assurances from officials that there are circumstances in which people in such situations may still have to register, and I would be grateful for clarity from the Minister on that.

Further to a point that my hon. and right hon. Friends have made, we gave one of the Minister’s predecessors some grief in discussion on Government amendment 9, which meant that this Bill would amend the “Online Safety Act 2022” by making online interference a priority offence. That was certainly a very welcome measure, but we said at the time that it was presumptuous to amend an Act when it was still a Bill in the Commons. Members might remember that the Online Safety Bill was on the Floor of the House while we debated it in this Bill Committee, so not to have made the change directly in the Online Safety Bill was somewhat cack-handed.

In subsection (9)(c) of new clause 14, we are referred once again to the “Online Safety Act 2022” for definitions. As things stand—I heard the Minister’s comments—what has happened to the Online Safety Bill is a bit of a mystery, and it seems to have been paused indefinitely. The last time it saw the light of day was that day in the Chamber, when we were in this Bill Committee. Can the Minister confirm that we will see that Bill again, and that the definitions in these new clauses will remain unchanged? Can he confirm that he is committed to ensuring that there is a future for making disinformation a priority offence, whether in that Bill or this? He will be aware that there are national security considerations in the Online Safety Bill that are of interest to him and to me, so we have an interest in ensuring that that Bill emerges once again.

[Maria Eagle]

Does my hon. Friend agree that for this clause to be accurate in referring to the “Online Safety Act 2022”, that Bill, which seems to have disappeared for now, has to have Royal Assent by the end of the year?

[Holly Lynch]

My hon. Friend is absolutely right. We thought that that was quite an aspiration at the time, but now it is looking even more unlikely. I just make the point to the Minister that that needs consideration to make sure we do not lose the definitions, or something more substantial under Government amendment 9.

Government new clause 15 defines “political influence activity” for the purposes of the new registration scheme. Members will be aware of the Security Service interference alert sent from MI5 to MPs and peers back in January regarding Christine Lee. The alert stated that Lee knowingly engaged in political interference activities on behalf of the United Front Work Department of the Chinese Communist party. The warning read that the UFWD was seeking to covertly interfere in UK politics by establishing links with established and aspiring parliamentarians across the political spectrum and cultivating relationships with influential figures. Can the Minister confirm that such conduct would need to be registered under these new clauses?

Proposed new subsection 3(a) states that

“the conduct of an election or referendum in the United Kingdom”

falls under the criteria of political influence activity. This is a welcome inclusion and reflects the evidence provided to the Committee by several of the expert witnesses we heard from at the start, which feels like a lifetime ago—it was certainly four Chancellors ago! One of the expert witnesses was former deputy national security adviser Paddy McGuinness. He stated,

“Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and…that there is bright transparency so we know who is doing what.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q48.]

We welcome the fact that the registration scheme will go some way toward addressing these concerns, but I want to again make the case for new clause 3, because the Minister was not here for that debate. His predecessor gave us a commitment to look further at it. Alongside this new clause, new clause 3 would provide for an annual review on disinformation, with particular consideration of interference in elections. That would help with the transparency and awareness piece that needs to sit alongside the provisions. In a similar spirit, we want to tighten Government new clause 15 with our new clause 29 on the registration of former members of intelligence services, and with new clause 5 on ministerial conduct when meeting with representatives of foreign intelligence services. We will come to those.

I would be grateful for clarity on when we can expect the new clauses to come into effect, as we are hearing that it might be some time. Will we seek to backdate them to capture political influence activity already in motion? I think I heard the Minister say that he could not yet say when the measures would come into effect, and essentially the Government would not be rushed on that matter. I asked the relevant agencies the same question, and the working assumption seems to be that we will not backdate the requirements. I ask the Minister to consider looking at that again. Surely we stand to miss much political influence activity that is already under way—not even necessarily activity that has started and come to an end, but conduct that may have started some time ago. We would create a loophole whereby people could claim, as a cover for failing to register, that the activity predated the introduction of the scheme, whether or not it actually did, and could thus commit an offence under new clause 16.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I do not want to repeat anything the shadow Minister said, but I have a couple of short points. I am supportive of the goal of the political tier, though I am somewhat struggling with the design of the scheme. In debate on new clause 11, I asked questions about how the provisions would apply when intermediaries were used. It would be useful if the Minister could write on that, as I do not think we got an answer to that in his summing-up speech. The same concerns arise here. We have a lot of information to go away and take on board, but I am struggling to understand how these measures will apply in all sorts of situations. Lots of case examples will be essential if we are to get to the bottom of how this is going to work.

A simple example would be a case where an international NGO incorporated in another European country had a sister NGO in the United Kingdom. Both have employees of their own, some here and some in Europe. Both have Members, some here and some in Europe. How do all these provisions and this scheme apply to them if they have a month of action? An international NGO may take part in some direct engagement, so it would have to register that. What if it encourages its sister NGO to do that? What if either of them contact their members? The Minister has reassured us that employees would not have to register anything individually. It is not absolutely clear which part of the Bill makes that clear; it would be useful to know that.

I presume, as well, that members who are urged by an international NGO to email their MPs will not have to register any sort of activity like that. Again, it would be useful to know precisely where that is made clear in the Bill. Although I dare say we would all be quite happy not to have quite so many emails prompted by NGOs, equally, I do not think any of us would want them to have to register their schemes under the Bill. It would really be useful if we could get a handle on how the legislation will apply to these typical sorts of situations.

--- Later in debate ---

Finally, subsection (3) makes provisions to ensure that where a person, company or entity is exempt from FIRS, that exemption extends to the employees or office holders of that entity acting in their official capacity. We consider that requiring these individuals to register with the scheme would be disproportionate if their employer was themselves exempt. I ask the Committee to support the six amendments that I have outlined.

[Holly Lynch]

There is an awful lot in this group that is still to be determined in regulations, which is always a shame because it does not allow for the same scrutiny as when we consider everything as a package.

Government new clause 18 creates exemptions to the registration requirements laid out in the previous clauses. There is merit to each of those exemptions, but my concern is that we are creating a grey area, particularly when a person engages in both exempt activity and registrable activity. For example, I note that in subsection (4), we do not require those who support the functioning of a diplomatic mission or consular post to register. However, we know that we have potential weaknesses here following the case of one of our own British embassy security staff, who was arrested and charged in Germany with spying for Russia under the Official Secrets Act 1911; it is good to know that that legislation is not totally out of date. That raises the question: do we go as far as we need to on the networks surrounding the vital work of embassies, and can we ensure that an exemption by role does not automatically exempt activity that we would certainly want to know about?

I have had the opportunity to discuss with officials my mixed views about the complete exemption of family members of a principal person under subsections (5) and (6) of new clause 18. While it is right to create a distinction between those we are interested in and their family members, I worry that if we are explicit about this in legislation, we are presenting them as perfect potential spies to the regimes that their principal family member is associated with, bearing in mind that we are dealing with some fairly unscrupulous hostile states.

In new clause 19, again, we are waiting for a great deal more information to be set out in regulation. Under subsection (3), where there is a material change to any information already registered, the Secretary of State has to be notified within 14 days of the material change’s coming into effect. Why 14 days after? Why not in advance of the material change, as is the case in other clauses—for example, within 10 days of the agreement being made when first registering?

Subsection (6) states that a person commits an offence if

“the information provided to the Secretary of State in relation to the registered arrangement or registered activity is misleading, false or deceptive in a material way.”

To come back to my earlier point, who will be undertaking those investigations? We are presumably creating a whole range of new responsibilities here, so who will lead that work, and will they have the corresponding resources?

Government new clause 20 permits the Secretary of State to give a notice to a person to provide information in connection with arrangements or activities registrable under the registration scheme. Subsection (3) states that the Secretary of State may permit an information notice

“requiring the person to whom it is given to supply the information specified in the notice.”

I have no doubt that information notices will be a powerful tool, but there is still a lot to be specified in the new clause.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East made a good point about oversight. I want to push the Minister on what means the public will have to query or raise concerns about an arrangement. If someone is aware of an arrangement that has either not been registered or not registered in full, what mechanism is there for them to raise that with the Home Office?

One of the examples that we discussed yesterday with officials was if a journalist writes an article that appears to be a blatant sales pitch for a hostile state. It would probably take an information notice to get to the bottom of whether it was commissioned by a hostile state, but how would a member of the public raise such a query? How would an employee of a company who is growing increasingly concerned about the nature of a joint project that they are working on raise those concerns with the Home Office? Currently, the mechanism is lacking from the provisions. I would be grateful to hear how the Minister intends to address that concern.

Government new clause 25 allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions. What really worries me about the registration scheme is that submissions will be made to the Home Office and they will go into some sort of electronic black hole and never see the light of day. We will not properly assess the arrangements or activities to see whether we are worried about them, and we will not publish them for months because we do not have the right back office resources to do so.

Any MP who has casework with the Home Office on almost any front—from visas to asylum and the national referral mechanism—will have experienced a similar service, despite, I have no doubt, the best efforts of civil servants. Can the Minister confirm that the register will be kept up to date in relative real time, and that it will be published online, which I think is what he said in his opening remarks? Can he also suggest a target turnaround time between registration and publication, which I am sure would be welcome and would set an early standard for what people can expect from the scheme?

[Stuart C. McDonald]

I will briefly emphasise how incredibly broadly and dangerously drafted new clause 20 is. All sorts of organisations will fall within the scope of the provisions; it could be a local business or a UK non-governmental organisation. Unless I am missing something, under the clause they can be asked by the Secretary of State in an information notice for virtually any information that she fancies helping herself to, with virtually no restriction whatsoever.

The new clause does not even require a link to some sort of ongoing investigation. There is no court oversight of the nature of the request, and there is absolutely no mechanism to challenge or appeal against any sort of information notice. If someone has been handed an absurd information notice and they refuse to comply with it, they can end up being prosecuted. As it stands, new clause 20 seems to be incredibly difficult and should be revisited.

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[Tom Tugendhat]

I turn to new clauses 22 and 23, which relate to the offence of providing false information and of carrying out activities under arrangements tainted by false information.

New clause 22 would create offences for where a registrant provides false or misleading information under the primary registration requirement or the enhanced registration requirement, or in response to an information notice. These offences are important to reduce the risk that the person is able to appear as if they have complied with the obligations under the scheme through the provision of false or misleading information. The delivery of the scheme’s objectives is undermined if a registrant is able to provide false or misleading information through registration or in response to an information notice without consequence. We should expect that those who seek to obfuscate their arrangements and activities will attempt to that, and we must be able to respond.

Such offences are not new or novel—indeed, they are common to requirements that place a positive obligation on members of the public to provide information. As with other offences we have considered, those that relate to the primary registration requirement have a higher bar for the prosecution to meet: that the registrant knows or ought reasonably to know that the information is false, inaccurate or misleading in a material way. By comparison, offences of the provision of false information in relation to the enhanced measure are to be strict liability. It should not be acceptable that such information is provided in relation to activity carried out for a specified foreign power or entity.

New clause 23 creates offences for carrying out activities under a registrable arrangement where false or misleading information has been provided in connection with the arrangement. I have already explained that the requirement to register an arrangement under the primary or enhanced registration requirements falls on the person who has made an arrangement with the specified foreign power or entity, or foreign principal.

We have also discussed the possibility that the registration of an arrangement could be made with false or misleading information: for example, where a person wants to appear as if they have complied with their registration obligations but is actively trying to conceal the true nature of their arrangements or activities.

These additional offences are important because they will allow for enforcement action to be taken against those who are acting pursuant to a falsely registered arrangement and are either complicit or in a position where they ought reasonably to know that the arrangement has been registered. As I explained in relation to the offences for carrying out activity pursuant to an unregistered arrangement, this will reduce the likelihood that unregistered activity is carried out, as well as providing a means of disrupting all levels of an organisation that has been identified as engaged in a covert arrangement or activity.

I want to reassure hon. Members that where an individual could not reasonably know that the information registered relating to the arrangement is false or misleading, they will not be prosecuted. It will be up to the courts to decide on a case-by-case basis whether someone charged with an offence ought reasonably to have known about the false information. I commend the new clause to the Committee.

[Holly Lynch]

It is right that new clauses 22 and 23 set out new offences that are created as a means of promoting compliance with the registration scheme. On that basis, we are satisfied that new offences are in order.

Question put and agreed to.

New clause 22 accordingly read a Second time, and added to the Bill.

New Clause 23

Offence of carrying out activities under arrangements tainted by false information

“(1) A person commits an offence if—

(a) the person carries out an activity in the United Kingdom pursuant to a foreign activity arrangement required to be registered under section (Requirement to register foreign activity arrangements)(1),

(b) information provided to the Secretary of State under section (Registration information) or (Information notices) in connection with the arrangement, whether by the person or by another person, is false, inaccurate or misleading in a material way, and

(c) the person knows, or ought reasonably to know, that the facts are as mentioned in paragraph (b).

(2) A person commits an offence if—

(a) the person carries out a political influence activity in the United Kingdom pursuant to a political influence arrangement required to be registered under section (Requirement to register foreign influence arrangements) (1),

(b) information provided to the Secretary of State under section (Registration information) or (Information notices) in connection with the arrangement, whether by the person or by another person, is false, inaccurate or misleading in a material way, and

(c) the person knows, or ought reasonably to know, that the facts are as mentioned in paragraph (b).

(3) Subsections (1) and (2) do not apply to a foreign power.

(4) Subsection (2) does not apply to—

(a) a recognised news publisher;

(b) a person within section (Requirement to register foreign influence arrangements)(6)(b).”.—(Tom Tugendhat.)

This new clause creates offences of carrying on activities under a registrable arrangement where false of misleading information has been provided in connection with the arrangement.

Brought up, read the First and Second time, and added to the Bill.

New Clause 24

Offences: penalties

“(1) A person who commits a foreign activity offence is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or both);

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both);

(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both).

(2) “Foreign activity offence” means—

(a) an offence under section (Requirement to register foreign activity arrangements)(10);

(b) an offence under section (Offence of carrying out activities under an unregistered foreign activity arrangement);

(c) an offence under section (Requirement to register activities of specified persons)(3);

(d) an offence under section (Registration information)(6) committed in relation to a foreign activity arrangement registered under section (Requirement to register foreign activity arrangements) or an activity registered under section (Requirement to register activities of specified persons);

(e) an offence under section (Information notices)(7) committed in relation to an information notice given under section (Information notices)(1);

(f) an offence under section (Offence of providing false information)(1) or (2);

(g) an offence under section (Offence of carrying out activities under arrangements tainted by false information)(1).

(3) A person who commits a foreign influence offence is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine (or both);

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both);

(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both).

(4) “Foreign influence offence” means—

(a) an offence under section (Requirement to register foreign influence arrangements)(8);

(b) an offence under section (Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement);

(c) an offence under section (Requirement to register political influence activities of foreign principals)(3);

(d) an offence under section (Registration information)(6) committed in relation to a foreign influence arrangement registered under section (Requirement to register foreign influence arrangements) or a political influence activity registered under section (Requirement to register political influence activities of foreign principals);

(e) an offence under section (Information notices)(7) committed in relation to an information notice given under section (Information notices)(2);

(f) an offence under section (Offence of providing false information)(3) or (4);

(g) an offence under section (Offence of carrying out activities under arrangements tainted by false information)(2).”.—(Tom Tugendhat.)

This new clause sets out the penalties for the offences created under the registration scheme.

Brought up, and read the First time.

[Tom Tugendhat]

I beg to move, That the clause be read a Second time.

--- Later in debate ---

[Tom Tugendhat]

New clauses 24 and 26 deal with the penalties and supplementary provisions for the offences under the scheme. I start by reminding the Committee of one of the scheme’s aims: to deter foreign power use of covert arrangements, activities and proxies.

FIRS will play an important role in countering state threats. It is therefore important that the scheme should have penalties that reflect the seriousness of non-compliance within that context. The new clause makes provision for two separate maximum penalties for the two parts of the scheme. It is proposed that any offence committed under the primary registration requirement should be capable of attracting a custodial penalty of up to two years on indictment, or a fine; that is compared with an offence committed under the enhanced registration requirement, which we propose should be capable of attracting a custodial penalty of up to five years on indictment, or a fine.

The availability of a custodial penalty is a necessary reflection of the seriousness of seeking to hide or obfuscate influence or activity in the United Kingdom directed by foreign powers or entities. The penalty must be taken seriously by those engaged in the state threats activity that we are trying to counter; that would be unlikely if, for example, we were to impose only financial penalties. The offences under the enhanced measure would be capable of a higher maximum custodial penalty. This distinction is to reflect the seriousness of hiding or obfuscating arrangements and activities, carried out on behalf of foreign powers or entities, that the Secretary of State has identified as being necessary to specify in order to protect the safety or interests of the United Kingdom. I have covered the issue to some extent through my earlier explanations about the differing thresholds for offences.

I will not spend long speaking to new clause 26, given that it extends the application of clauses 28 and 29 to the offences under this part and mirrors the approach taken to exclude the public from legal proceedings in clause 31—clauses that have all been debated by the Committee already.

The new clause has several functions. First, it extends the application of clause 28 to this part so that the officers of bodies corporate and other bodies may be held liable for offences committed by those bodies. Given that a body corporate or other bodies can make either a foreign activity arrangement or foreign influence arrangement, it is crucial for the enforceability of the scheme that these bodies and their officers can be held liable should they breach the conditions set out under these provisions.

Secondly, the new clause extends the application of clause 29 to an offence under this part that is capable of being committed outside the UK. In the context of FIRS, that relates to where a foreign activity or foreign influence arrangement has been made outside the UK but has not been registered within the 10-day period. Although the activity pursuant to the arrangement must take place in the UK, the offence for failing to register can therefore be committed overseas. We have already debated the necessity of this in respect of the new clauses relating to the registration of arrangements.

Finally, this provision grants the court the power to exclude the public from proceedings for offences under this part, where necessary in the interests of national security; it is important to be clear, however, that this does not apply to the passing of a sentence. Excluding the public from proceedings might be necessary in circumstances where the Crown needs to adduce sensitive evidence as part of the prosecution—evidence that may be harmful to national security if shared more widely with the public.

For example, if a person provided false information in connection with an activity that is required to be registered in relation to a foreign influence arrangement, it might be necessary to rely on sensitive evidence to demonstrate why that information was considered to be false and what the person’s actual activities included. The provision would ensure that such sensitive evidence could be examined without the public being present. The decision to exclude the public would be made by the court, not the prosecution, and it is important to note that the power does not grant the use of closed material proceedings.

[Holly Lynch]

Government new clause 24 lays out the penalties for offences committed under the registration scheme. Subsection (1) states that a person who commits a foreign activity offence is liable on conviction or indictment to a maximum five years of imprisonment. Subsection (3) states that a person who is found to have committed a foreign influence offence is liable to a maximum two years of imprisonment. My hon. Friend the Member for Garston and Halewood raised this point yesterday with officials: why the marked difference in sentencing between the different strands of activity?

Subsection (1) of Government new clause 26 states that officers of bodies corporate may be held liable for offences committed by those bodies in relation to the registration scheme. That is a welcome measure that will ensure that corporate officers and organisations will remain accountable to the registration scheme. Like the inclusion of body corporate offences in part 1 of the Bill, it reflects the seriousness with which UK businesses must treat the provisions.

Subsection (3) provides that the public may be excluded from proceedings for an offence under part 1. As the Minister said, we discussed at previous stages of the Bill that it is right to have that option where matters prejudicial to the UK’s national security may need to be cited for prosecution. However, we stress that it is a power that should be exercised only when necessary.

[Tom Tugendhat]

The difference between the tariffs is purely down to the different importance of a general registration and an enhanced registration.

Question put and agreed to.

New clause 24 accordingly read a Second time, and added to the Bill.

New Clause 25

Publication and copying of information

“(1) The Secretary of State may by regulations make provision about—

(a) publication of information provided to the Secretary of State under this Part;

(b) copying of information provided to the Secretary of State under this Part.

(2) The power under subsection (1) includes in particular power to make provision about a description of information or material which is not to be published.”—(Tom Tugendhat.)

This new clause allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions.

Brought up, read the First and Second time, and added to the Bill.

New Clause 26

Offences: supplementary provision

“(1) Section 28 (offences by body corporate etc) applies in relation to offences under this Part as it applies in relation to offences under Part 1.

(2) Section 29(1) and (3) to (5) (offences committed outside the United Kingdom) applies in relation to offences under this Part as it applies in relation to offences under Part 1.

(3) If it is necessary in the interests of national security, a court may exclude the public from any part of proceedings for an offence under this Part, except for the passing of sentence.”—(Tom Tugendhat.)

This new clause provides that officers of bodies corporate and other bodies may be held liable for offences committed by those bodies, that offences may be committed outside the United Kingdom, and that a court may exclude the public from proceedings for offences.

Brought up, read the First and Second time, and added to the Bill.

New Clause 27

Annual report

“(1) The Secretary of State must, as soon as is practicable after the end of each relevant period—

(a) prepare a report in relation to that period, and

(b) lay a copy of the report before Parliament.

(2) The report must provide details of—

(a) the total number of arrangements registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements),

(b) the number of arrangements registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements) during the relevant period,

(c) the total number of specified persons and foreign principals who have registered activities with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register foreign influence activities of foreign principals),

(d) the number of specified persons and foreign principals who have registered activities with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register foreign influence activities of foreign principals) during the relevant period,

(e) the number of information notices issued under section (Information notices) during the relevant period,

(f) the number of persons charged with an offence under this Part during the relevant period, and

(g) the number of persons convicted of an offence under this Part during the relevant period.

(3) ‘Relevant period’ means—

(a) the period of 12 months beginning with the day on which this section comes into force, and

(b) each subsequent period of 12 months.”—(Tom Tugendhat.)

This new Clause requires the Secretary of State to provide an annual report to Parliament on matters relating to the registration scheme.

Brought up, and read the First time.

[Tom Tugendhat]

I beg to move, That the clause be read a Second time.

New clause 27 requires the Secretary of State to prepare and publish an annual report to Parliament on the operation of FIRS. I have already spoken about the importance of transparency. Indeed, transparency is essential to the functioning not only of our democracy but of our entire state. The hon. Member for Halifax raised that issue on numerous occasions, and I have committed to working with her. The commitment to publish information about the scheme’s operation will help to ensure that the UK public is more informed about the scale and extent of foreign influence in our political affairs, as well as activity being undertaken for specified foreign powers or entities.

The information that the Secretary of State would be required to provide is as follows: the total number of foreign activity and foreign influence arrangements registered with the Secretary of State; the number of foreign activity and foreign influence arrangements registered with the Secretary of State over the previous year; the total number of specified persons and foreign principals who have registered activities with the Secretary of State; the number of specified persons and foreign principals who have registered activities with the Secretary of State over the previous year; the number of information notices issued over the previous year; the number of persons charged with a FIRS-related offence over the previous year; and the number of persons convicted of a FIRS-related offence over the previous year. The new clause acts as a safeguard by inviting parliamentary and public scrutiny of the operation of FIRS.

[Holly Lynch]

I thank the Minister for that explanation. We very much welcome new clause 27. My understanding is that the different elements of the scheme could come into effect at different times. Will the Minister confirm that if, for example, the requirement to register foreign influence arrangements becomes operational before the requirement to register foreign activity arrangements, or vice versa, the annual report will be due a year from the start date of the specific scheme, not a year after both parts of the scheme come into effect?

--- Later in debate ---

[Tom Tugendhat]

I take that point in the spirit in which it was made. I think that makes sense, but it should be possible to refer back through the registrations. If registrations have not been made, I take her point entirely.

Question put and agreed to.

New clause 27 accordingly read a Second time, and added to the Bill.

New Clause 28

Interpretation

‘(1) In this Part—

“foreign activity arrangement” has the meaning given by section (Requirement to register foreign activity arrangements);

“foreign influence arrangement” has the meaning given by section (Requirement to register foreign influence arrangements);

“foreign power” has the same meaning as in Part 1 (see section 25), subject to subsection (2);

“foreign principal” has the meaning given by section (Requirement to register foreign influence arrangements);

“political influence activity” has the meaning given by section (Meaning of “political influence activity”);

“recognised news publisher” has the meaning given by section (Requirement to register foreign influence arrangements);

“registered activity” means an activity registered with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register political influence activities of foreign principals);

“registered arrangement” means an arrangement registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements);

“specified person” has the meaning given by section (Requirement to register foreign activity arrangements).

(2) For the purposes of this Part references in section 25 to a foreign State, or a foreign country or territory, do not include the Republic of Ireland.

(3) Any provision of this Part which does not apply in relation to a person (“P”) does not apply in relation to—

(a) a person who holds office in or under, or is an employee or other member of staff of, P (acting in that capacity);

(b) a person whom the Secretary of State reasonably considers to be exercising functions on behalf of P as if they are a person who holds office in or under, or as if they are an employee or other member of staff of, P (acting in that capacity).’ —(Tom Tugendhat.)

This new clause contains definitions relevant to the registration scheme.

Brought up, read the First and Second time, and added to the Bill.

New Clause 4

Proceedings relating to safety or interests of the United Kingdom

“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.

(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”—(Holly Lynch.)

Brought up, and read the First time.

[Holly Lynch]

I beg to move, That the clause be read a Second time.

New clause 4 is an attempt to make a clear distinction between what is in the Government’s interest and what is in the national interest, so that the two cannot be conflated. There are a number of new offences created under part 1 of the Bill, and a key condition running throughout those offences is that a person knows, or ought reasonably to know, that their conduct is prejudicial to the safety or interests of the United Kingdom. There are other conditions that must be met, with the foreign power condition perhaps being the most substantial.

The aim of new clause 4 is to ensure that a court considering proceedings in relation to part 1 offences must take account of how the interests of the Secretary of State, or the Government of the United Kingdom, may be slightly separate from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered. Members will recognise that there is already a difference between the safety of the United Kingdom and the interests of the United Kingdom, with the new offences encompassing both. I suspect there will be a great deal of consensus on safety, but to explicitly define and agree on interests I imagine would be much harder.

We worked through various examples as part of the deliberations on part 1 offences. One such example was whether, if the Government faced deliberate disruption enacting policy they deemed to be in the national interest, that would be enough to meet the threshold? If, for example, a deportation flight—the stuff of the Home Secretary’s dreams—was prevented from taking off because of protesters, would that be enough to meet the prejudicial to the national interest threshold? The Government might wish to argue that case, although it would be far from compromising national security.

We got some assurances from the Minister’s predecessor that national security laws would not transgress into conduct that may be irritating for the Government but lawful, or into prosecuting other criminal offences by treating them as unduly having national security implications. Beyond the specifics of the new offences created by the Bill, we also believe that new clause 4 would establish in principle the distinction between the Government’s political interests and the country’s national security.

I am explicit that the new clause, alongside new clause 5 and new clause 29, have at least in part been shaped by the meeting that we now have confirmation took place between the former Prime Minister, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was Foreign Secretary, and former KGB officer Alexander Lebedev, at the height of the Salisbury poisoning. It is worth remembering that we did not have confirmation of that meeting when the Bill Committee first started, and the right hon. Member was still the Prime Minister. I do not know if that is an indication of how quickly things move in politics or of how long this Bill Committee has been going on for. However, it is the sort of example that warrants the separating out of Government and individual Minister’s political interests and national security interests. It has become too easy to suggest that answers could not be provided on that matter and others for security reasons, when actually getting to the bottom of what had gone on was very much in the national interest. It may not have been in the Government’s political interest, but that is the distinction that is important to put on a proper statutory footing.

--- Later in debate ---

[Tom Tugendhat]

I welcome the spirit with which the hon. Member for Halifax has entered into this discussion, and I appreciate her points. Making illegal those matters that irritate Ministers of the Crown would certainly make my life at home significantly quieter, as it would silence my children. Sadly, I think that trying to make case law for my family would be problematic.

It is certainly true that there is a difference between the interests of Ministers and the interests of an individual Minister, whether that be an ordinary Minister or a Prime Minister, and national security. Case law in the United Kingdom already recognises that in considering any prosecution in relation to offences to which the provisions regarding prejudice to the safety of the interests of the UK apply. The UK courts already consider the nature and risk to the safety and interests of the UK. Case law already makes clear that

“the safety or interests of the United Kingdom”

should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. That is notably different from protecting the particular interests of those in office.

Again, I appreciate the spirit with which the hon. Lady has entered into the conversation, but the provisions in part 1 to which the safety or interests test applies are measures that disrupt and respond to serious national security threats, such as those from espionage, sabotage and threats to the UK’s most sensitive sites. As I am sure hon. Members will agree, it is right that appropriate conditions—such as the test of whether conduct is carried out for, on behalf of, or with the intention to benefit a foreign power—are in place to limit the scope of the offences to the types of harmful activity we are targeting.

The combination of the conditions we apply to measures in the Bill mean that not only are the offences themselves proportionate, but an appropriately high bar has to be met to bring a prosecution. These conditions take us firmly outside the realm of merely leaking embarrassing or unauthorised disclosures, or indeed whistleblowing or domestic political opposition. The Law Commission shared that sentiment in the evidence it gave to the Committee—of course I was not present, but given her reference to the length of time in politics I am sure she will understand that.

Individuals and groups might not agree with Government policy, but it still represents the policy that the Government have been elected to carry out, so disclosing protected information from a foreign power can never be the right response to that. It would not be appropriate for the courts to second guess the merits of Government policy in this way. On the basis that the courts are well able to judge the difference between national interest and personal interest, I hope that the hon. Member will withdraw the amendment.

[Holly Lynch]

I suspect the Minister understands the points I am making and is sympathetic to what I am trying to get at. I put him on notice that, where I think there is information that could and should be in the public domain and I meet barriers relating to national security reasons preventing it from being in the public domain, I will be a thorn in his side every step of the way. With that veiled threat—

[Jess Phillips]

It wasn’t veiled.

[Tom Tugendhat]

Not very veiled, no.

[Holly Lynch]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Ministerial conduct

“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.

(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—

(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or

(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.

(3) In this section ‘engagement’ includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”—(Holly Lynch.)

Brought up, and read the First time.

[Holly Lynch]

I beg to move, That the clause be read a Second time.

New clause 5 is similar to the previous new clause and would mean that a Minister of the Crown may only engage with a person who is a part of a foreign intelligence service if either a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing. That would apply both to meetings in person and via electronic means. It would apply to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service. Failure to follow these rules should be a resignation matter.

The measures proposed throughout the Bill promise an extensive overhaul in establishing what constitutes meeting with and assisting a foreign power threat, including new offences and regimes covering almost all aspects of society. It is entirely right that we also consider the role of Ministers. I am afraid that, once again, the need for such a provision was born out of the conduct of the right hon. Member for Uxbridge and South Ruislip when he was the Foreign Secretary. However, there are other examples.

The right hon. Gentleman confirmed to the Liaison Committee that he met with former KGB officer Alexander Lebedev without officials and without permission at the height of the Salisbury poisoning back in 2018. To set the scene, that was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. In advance of that meeting, NATO Secretary-General Jens Stoltenberg outlined that Russia would be the first item on the agenda, after what he said were several years of Moscow’s “pattern of dangerous behaviour”, confirming, as the Prime Minister had already done, that:

“It is also highly likely that Russia was behind the nerve agent attack in Salisbury.”

That NATO meeting was on 27 April 2018.

The Foreign Secretary went straight from that NATO meeting to Palazzo Terranova in Italy for a weekend-long party hosted by Evgeny Lebedev, now Lord Lebedev. There he met with Evgeny Lebedev’s father, Alexander Lebedev, an ex-KGB officer. The Foreign Secretary attended the party with no security and no officials, despite his position being deemed to require round-the-clock protection from the Metropolitan police. There is a brief entry of ministerial interests on the Foreign Office website, where he declared an “overnight stay” at the party on 28 April, which is the only official record in existence.

While the Foreign Secretary was partying with Lord Lebedev and his father, the ex-KGB officer, the Novichok was still waiting to be found in a bin seven miles north of Salisbury. It was found by Charlie Rowley on 30 June, who survived his exposure to the Novichok. However, his partner, Dawn Sturgess, did not, having sprayed it directly on to her skin, believing it to be perfume.

In September 2018, the Prime Minister returned to update the House of Commons to confirm that, based on a body of intelligence, the Government had concluded that the two individuals named by the police and the Crown Prosecution Service were officers from the Russian military intelligence service, the GRU. The right hon. Member for Uxbridge and South Ruislip followed up in writing to the Liaison Committee in his letter dated 21 July 2022, saying:

“As far as I am aware, no Government business was discussed”

at that encounter with Alexander Lebedev. Needless to say, that one line presented far more questions than answers.

We have decided to keep the definition tight to someone who is a member of a foreign intelligence service. Committee members might point out that, in this particular scenario, given that Alexander Lebedev would describe himself as a former KGB officer, the right hon. Member for Uxbridge and South Ruislip would not necessarily be covered by the new clause. However, this new clause, new clause 4 and new clause 29 would work in combination to ensure that the gap in procedure exposed by the meeting I have just outlined would be closed down.

It is right to ensure that the Government and officials act with accountability and transparency. The new clause does not prevent such meetings taking place; it only formalises expectations around how any such encounter should be managed. The Government may argue that it is not necessary, as similar expectations are already provided for by the ministerial code, but the ministerial code was very much degraded in recent months, and was in effect when the meeting that I outlined took place, so there is very much a case for tighter measures.

The public have a right to expect the highest possible standards from their Government officials, in both their public and private lives. The new clause will ensure that Government officials adhere to strict clearance systems when dealing with the intelligence services of hostile foreign states. I hope the Government will welcome this opportunity to tighten standards and will support new clause 5.

[Tom Tugendhat]

I welcome the spirit in which the new clause was tabled. I understand the points made by the hon. Member for Halifax. As she knows very well, Ministers are already expected to uphold the ministerial code. I am not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip; as the hon. Lady will know, we had our disagreements at that time, when I was chairing the Foreign Affairs Committee, and I put them on the record. Indeed, I attended the Liaison Committee hearing to which she referred.

It is important to look at where we are today and to recognise that the re-issuing of the ministerial code in May this year, which included proportionate sanctions, should be taken into account. It is also worth pointing out that the Bill already includes several measures to counter hostile activity, including updated espionage offences for disclosing or providing access to protected information and offences for engaging in preparatory conduct relating to espionage. That could just be a simple meeting and a cup of coffee.

In clause 3, the Bill also seeks to criminalise activity whereby a person either engages in conduct that they intend will materially assist a foreign intelligence service or knows or reasonably ought to know that conduct that they are engaged in is of a kind that it is reasonably possible may materially assist a foreign intelligence service. As the former head of GCHQ put it, this is all about making sure that others cannot construct a haystack in which to find a needle. It means that, for the first time, it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service.

To be clear to the Committee, the offences would capture Ministers of the Crown if they engaged in conduct that falls outside their official functions or capacity as a Minister. Moreover, ministerial conduct is principally a matter for the ministerial code and there are already transparency measures in place for Ministers of the Crown to formally record their engagements with external parties and declare any gifts and hospitality. If a Minister is with an external organisation or individual and finds themselves discussing official business without an official present—for example, at a social occasion—any significant content should be passed back to the Department as soon as possible after the event.

Although it would not be appropriate to comment on security or intelligence matters, what I can say is that Ministers are made fully aware of their responsibility to safeguard national security, including in respect of the standards of conduct expected of Ministers and how they discharge their duties in maintaining the security of Government business, as set out in the ministerial code. Although the new clause may seek to provide further accountability and propriety, it would not be appropriate to create new, separate provisions.

Overall, I consider that the existing mechanisms that are already in place to increase transparency around foreign influence in the UK political and governmental system, as well as the measures already in the Bill aimed at tackling and responding to the malign nature of seeking to assist a foreign intelligence service, are sufficient. I ask the hon. Member for Halifax to withdraw the new clause, although I recognise the pattern of actions that brought her to table it.

[Holly Lynch]

The Minister has gone through the pre-existing frameworks that should have prevented such a meeting from taking place, and suggests that those should be enough. Unfortunately, the example I gave shows that they were not enough. We still do not have all the answers we would like about what was discussed and what the nature of that engagement was, and the clarity that would satisfy us that there were no breaches of national security as part of that interaction. The Minister is right that all that should have been enough, but it was not in those circumstances, and as far as we can tell there were no real consequences in real time of that having taken place.

I have made my case strongly; however, as the Minister has put his personal views on the record and given his assurance that he understands the points I made and will continue to bear them in mind as we look at some of the protections in the round, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 6

Defences

“(1) In any proceedings for an offence under section 2 of this Act or section 5 of the Official Secrets Act 1989, it shall be a defence—

(a) that the disclosure in question was in the public interest, and

(b) the manner of the disclosure was also in the public interest.

(2) Whether a disclosure was in the public interest shall be determined having regard to—

(a) the subject matter of the disclosure,

(b) the harm caused by the disclosure, and

(c) any other relevant feature of the disclosure.

(3) Whether the manner of disclosure was in the public interest shall be determined having regard to—

(a) whether the disclosure has been made in good faith,

(b) if the disclosure relates to alleged misconduct, whether the individual reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) whether the disclosure is made for the purposes of personal gain,

(d) the availability of any other effective authorised procedures for making the disclosure and whether those procedures were exercised, and

(e) whether, in all the circumstances of the case, it is reasonable for the disclosure to have been made in the relevant manner.”—(Mr Jones.)

This new clause introduces a public interest defence to the new disclosure offence created by clause 2, and the section 5 disclosure offence in the Official Secrets Act 1989. The proposed defence is modelled on the public interest defence in the Public Interest Disclosure Act 1998.

Brought up, and read the First time.

[Mr Jones]

I beg to move, That the clause be read a Second time.

It will come as no surprise to the Committee that I am not moving the new clause as some bleeding-heart liberal, and I would certainly do nothing to undermine the security of our country. However, as can be seen from the names put to the new clause, it has cross-party support throughout the House, including on the Government Benches.

The new clause even has support in the Cabinet, from the Secretary of State for Wales, the right hon. and learned Member for South Swindon (Sir Robert Buckland), the former Justice Secretary. While he was off the Cabinet carousel—the system at the moment—he was clear in arguing for why we need a public interest defence. To quote from the opening paragraph of his article on “ConservativeHome” in December 2021:

“The principle of open government is too often seen as an issue for the left, but I firmly believe that it is profoundly Conservative to believe that transparent administration is what should lead to higher standards, greater efficiency and better value for taxpayers’ money. As Conservatives, we believe that the State should be our servant, not our master.”

I could not agree more.

Such a measure as this is long overdue. There are basically three arguments against it, which I have deduced over the past few months since I tabled the new clause: first, it will be too difficult, which is the obvious one that always comes out; secondly, if we are in favour of it, we will open the floodgates to leaks and will be a leakers’ charter; and finally, it will make it difficult for our security forces, because evidence would have to be put into court to defend such actions, even though that has to happen now anyway. In a minute, I will come on to reasons why that argument is nonsense.

In its 2015 report, the Law Commission argued for a public interest defence. Are there strong reasons why there should be criminalisation of the leaking information under the Official Secrets Act 1989? Yes, there are, but I would also strongly argue that there has to be a defence in the public interest where someone is disclosing serious wrongdoing in Government—that individual needs to be able to have recourse to that defence in the courts. The problem I have is that if we do nothing—which seems to be the Government’s approach—what we will have, which is what we have already, is leaving it up to juries. I would sooner have the defence outlined in law, so that people can use it and so that it is impossible for certain other people to use it.

The Law Commission said in its report,

“we cannot be certain that the current legislative scheme”

in the 1989 Act, which does not provide for a public interest defence,

“affords adequate protection to Article 10 rights under the ECHR.”

That is the right to freedom of speech. We have a recommendation from the Law Commission and we have the opportunity to act on it in this Bill. It seems that, like lots of things in the Bill, it has been put on a pile on somebody’s desk of things that are too hard to manage. It is a missed opportunity.

The other side to it is that the defence would act as a safety valve. I have said in earlier sittings that the Bill is a missed opportunity to reform the 1989 Act, and I am still bemused to know whether the Bill and that Act will work alongside one another. The 1989 Act is outdated: it does not recognise modern technology, as the Intelligence and Security Committee outlined in its Russia report in 2020. It also fails to protect the individual in cases in which they know of wrongdoing and release it into the public domain because they feel there is no other course of action.

We then come to how we define the defence. I am not suggesting that what I have put in the new clause is ideal, but the argument “It is far too difficult and we could never do this”—which is what certain individuals have said to me—is not right. If we look at what is already in law—employment law, I hasten to add—we see that there is a definition in the Public Interest Disclosure Act 1998. Can we cut and paste that definition? No, I do not think we can, but it certainly provides a template. It is a piece of employment law that prevents whistleblowers from being negatively treated or unfairly dismissed when reporting concerns. That is a starting point.

There are other aspects we could look at in terms of a definition. The subject matter of the disclosure will obviously have to be part of it, as will the seriousness of the misconduct exposed. We must consider the harm caused by the disclosure and the proportionality in that respect, as well as whether the disclosure was made in good faith. Certainly, if someone just dumped a load of data into the public domain, we could argue that that was not done in good faith and would not meet the test at all.

We must consider whether the disclosure is made for the purpose of personal gain. If someone is selling something, that certainly would not meet the criteria. There are factors such as whether the extent of the disclosure is no more than responsible and necessary for the purpose of exposing the relevant conduct, and whether the individual reasonably believes that the information disclosed and any allegations it contains are true. There is the availability of any other effective authorised proceedings; if there are no other ways to do it, that would be a defence. Lastly, we must consider whether in all circumstances and cases it is reasonable to disclose, as well as the manner in which the information was disclosed.

The Law Commission recommended another safety value, which is something I am open to, but it seems that the Government completely ignored that. The issue will not go away—that is the point. We want to protect our security services; I am sorry, but having done jury service myself I would not leave it to a jury to decide what the arguments are. At least if we had this defence, people could argue the legal points and use it as a defence. It is supported by many lawyers, by the right hon. and learned Member for South Swindon and by many newspaper editors. That is why I have moved the new clause.

My other two points are about the argument that if we cross this Rubicon, somehow the floodgates will open and there will be a green light for everyone to release information. There is no evidence of that at all. In Australia, New Zealand and Canada, where they have a similar public interest defence, there is no evidence that its use is increasing. The other argument that has been put to me is that introducing the defence would allow people like Julian Assange to use it as a defence, but that is absolute nonsense. The new clause would actually make the Bill Assange-proof, because anyone who data dumped could not use the public interest defence.

Finally, there is an argument that I find remarkable. I do not know where it has come from, but the argument is that if we put a public interest defence into law, we will somehow have a situation whereby the security services will have to disclose things in court. My response is that if there is a data dump or somebody is prosecuted under the Official Secrets Act, we still have to go to court, but we have closed hearings, which protect sensitive sources. I honestly do not understand why this has just been left off. I think it has been left in the “hard to do” pile and some people think, “Do we really want to upset the status quo?” We need to get the balance right between protecting our national secrets, which I would certainly argue we should, and allowing a legitimate balance between the powers of the state. That would perhaps not be a problem under the usual conventions, but in the previous debate my hon. Friend the Member for Halifax clearly demonstrated that we have a Government who seem to ignore every convention.

It is in that spirit that I move the new clause. I know that U-turns are in fashion at the moment among the current Government, and I wish and hope that if the Minister—with a new set of eyes on this matter—cannot agree to the new clause today, he will at least look at how we can incorporate a public interest defence into the Bill.

[Holly Lynch]

I thank my right hon. Friend for tabling new clause 6, and I thank you, Mr Gray, and Ms Ali for allowing a debate on its merits.

As my right hon. Friend has outlined, the new clause seeks to add a public interest defence to the new disclosure offence created by clause 2 and to the section 5 disclosure offence in the Official Secrets Act 1989. There is of course an undeniable requirement to protect from public disclosure information that, if revealed, could be harmful to our national security. However, for the security services to be able to function as they should within a democracy, they rely on the trust of the British people and their elected representatives, with enough transparency and oversight to make accountability a real part of their work.

As has been mentioned, three of our four Five Eyes partners already have a mechanism that provides a public interest defence with regard to disclosures of this nature. It is also well documented—this is a point made on Second Reading—that, as a country, we have increasingly asked juries to make their own determinations on public interest defences when considering judicial proceedings. We have seen that result in varied outcomes, with a great deal of discretion afforded to jury members in the absence of a clear legislative framework for them to start from.

We might also make the case that, in the event that someone feels they have an obligation to share information but there is no agreed and structured route through which to do that, the absence of an alternative whistleblowing procedure leaves them with limited options, often resulting in a decision to go public and take their chances in the courts. 

The Law Commission examined all this in its incredibly detailed 2020 “Protection of Official Data” report—specifically, in chapter 8—and we are grateful to the authors of that report for their evidence at the start of the Committee stage. With the commission having engaged with a significant number of stakeholders, its report is clear in its recommendation to have a public interest defence.

The report’s authors deal with the complexities head on, saying:

“The public interest in national security and the public interest in transparent, accountable government are often in conflict. While, no doubt, public accountability can ensure that government is protecting national security, the relationship between security and accountability is nonetheless one of tension.”

They go on to say:

“Our concern in this part of the Report is to reconcile these competing interests (so far as possible). It is to propose a legal model that ensures that the price of protecting national security is not to undermine the rule of law (and vice versa). We are concerned to ensure that those with evidence of wrongdoing in Government do not feel that they must commit a serious criminal offence and take the law into their own hands, risking both the national security, and people's lives, in order to have that evidence properly investigated.”

--- Later in debate ---

[The Chair]

Before we move on, I should say that if we have a Division, or several Divisions, the Committee will be suspended for 15 minutes for the first one and 10 minutes for subsequent ones. If the discussion goes beyond 5.15 pm, which is of course our cut-off time, there will be no further time for debate thereafter, but we must return here for the decisions to be made whenever the Divisions are over.

New Clause 29

Registration of former employees of foreign security services

“(1) A former employee of a security or intelligence service of a foreign power who is present in the United Kingdom for more than 2 months must register their presence with the Secretary of State.

(2) The Secretary of State may by regulations make provision about the information a person is required to provide to the Secretary of State when registering under this section.

(3) Failure to register as required by subsection (1) is an offence.

(4) A person commits an offence if, without reasonable excuse, the person fails to provide information required by virtue of subsection (2).

(5) A person commits an offence if—

(a) the person provides information to the Secretary of State by virtue of subsection (2),

(b) the information is false, inaccurate or misleading in a material way, and

(c) the person knows, or ought reasonably to know, that the information is false, inaccurate or misleading in a material way.

(6) An offence under this section is a foreign influence offence under section (Offences: penalties).”—(Holly Lynch.)

Brought up, and read the First time.

[Holly Lynch]

I beg to move, That the clause be read a Second time.

On considering the foreign influence registration scheme and its intended use, we felt that there was room to go further in relation to former employees of the intelligence services of other nations. New clause 29 will require all former employees of a security or intelligence service of a foreign power who are present in the United Kingdom for more than two months to register their presence with the Secretary of State. The Secretary of State has the discretion of making provisions by regulations about what information is required. We know that we are dealing with countries that are tasking their people to engage in a multitude of influence activities, from the loud and overt to the barely seen and covert, and everything in between.

Turning specifically to oligarchs and that culture, we have seen some individuals establish themselves almost as London celebrities. They are incredibly wealthy, and for some their status is built partly on the back of having been a former employee of an intelligence service. They make that clear as part of their persona, and it is the “former” bit that gives them a degree of cover. They have the connections and insight to be an interesting and potentially helpful ally to some of our politicians and decision makers, especially if they are incredibly wealthy, as so many oligarchs are, yet are deemed to be arm’s length enough for there to be the confidence for those relationships to grow largely unabated.

The notion of systemic opposition in Russia in particular provides for a degree of criticism of Putin and his regime as a means of occupying the space where actual opposition should be, and once again provides a degree of cover for those oligarchs overseas who engage in some criticism—enough to satisfy those they need to satisfy that they are indeed critics—before later mounting staunch defences of their former regimes when necessary. In addition to the FIRS framework set out in the Government’s new clauses, this is another intended layer of transparency, aimed precisely at those people, to put on a formal footing both those who are open about their previous work and those we may not otherwise know about.

We have discussed that those engaged in espionage are often not typical in any way. They will have received training, and will be incredibly capable and resourceful. Even those who have truly moved away from careers in the intelligence services will not lose overnight the ability to exercise those skills. I take on board that those working for security services have the right to a life after those careers; however, given that there are regimes known to pressurise, blackmail, or force co-operation from their people, even if they have truly walked away from that environment, there would be merit in the Secretary of State knowing where those vulnerabilities lie. I hope that the Minister will see the merit in this addition to the foreign influence registration scheme and adopt new clause 29.

[Tom Tugendhat]

I note the proposed new clause, and I hope that the hon. Member for Halifax will take my response in the way I intend it. Either foreign intelligence agents are already declared, in which case they are actively engaged in conversations with our intelligence services, or they are undeclared, in which case asking them to register may be something that we can hope for, but would be unlikely. I understand the intention behind the new clause, although I question whether it is proportionate, given that we are already trying to get anybody who is connected to a foreign agent to be registered. I feel that it may be more hopeful and aspirational than a realistic attempt to change other people’s actions.

[Holly Lynch]

The Minister absolutely understands the point that I was making. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Schedule 1

Disclosure orders

Part 1

England and Wales and Northern Ireland

Introductory

1 (1) This Part of this Schedule applies in England and Wales and Northern Ireland.

(2) “Relevant investigation” means an investigation into the identification of relevant property or its movement or use.

(3) “Relevant property” means—

(a) money or other property which is likely to be used for the purposes of foreign power threat activity, or

(b) proceeds of involvement in foreign power threat activity.

(4) The reference to proceeds of involvement in foreign power threat activity includes a reference to any money, other property or benefit in money’s worth, which wholly or partly, and directly or indirectly, represents the proceeds of the involvement (including payments or rewards in connection with the involvement).

(5) “Appropriate officer” means—

(a) a constable, or

(b) a National Crime Agency officer.

Disclosure orders

2 (1) An appropriate officer may apply to a judge for a disclosure order.

(2) The application must state that a person or property specified in the application is subject to a relevant investigation and the order is sought for the purposes of the investigation.

(3) The judge may grant the application if satisfied that conditions 1 to 3 are met.

(4) Condition 1 is that there are reasonable grounds for suspecting that the property specified in the application is relevant property.

(5) Condition 2 is that there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation.

(6) Condition 3 is that there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.

(7) A disclosure order is an order authorising an appropriate officer to give to any person the officer considers has relevant information notice in writing requiring the person to do any or all of the following with respect to any matter relevant to the investigation—

(a) answer questions, either at a time specified in the notice or at once, at a place so specified;

(b) provide information specified in the notice, by a time and in a manner so specified;

(c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.

(8) “Relevant information” means information (whether or not contained in a document) which the appropriate officer considers to be relevant to the investigation.

(9) A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced.

(10) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.

Supplementary provision

3 (1) A disclosure order does not confer the right to require a person—

(a) to answer any question,

(b) to provide any information, or

(c) to produce any document or other material,

which the person would be entitled to refuse to answer, provide or produce on grounds of legal professional privilege in proceedings in the High Court.

(2) But a lawyer may be required to provide the name and address of a client.

(3) A disclosure order does not confer the right to require a person to produce excluded material.

(4) A disclosure order has effect despite any restriction on the disclosure of information imposed by an enactment or otherwise.

(5) An appropriate officer may take copies of any documents produced in compliance with a requirement to produce them imposed under a disclosure order.

(6) The documents may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.

(7) But if an appropriate officer has reasonable grounds for believing that—

(a) the documents may need to be produced for the purposes of any legal proceedings, and

(b) they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.

(8) An appropriate officer may retain documents under sub-paragraph (7) only if the officer is a senior officer or is authorised to do so by a senior officer.

Applications

4 An application for a disclosure order may be made without notice to a judge in chambers.

Discharge or variation

5 (1) An application to discharge or vary a disclosure order may be made to the Crown Court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the disclosure order was made by a constable, an application to discharge or vary the order may be made by a different constable.

(3) If the application for the disclosure order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.

(4) An appropriate officer may not make an application to discharge or vary a disclosure order unless the officer is a senior officer or is authorised to do so by a senior officer.

(5) The Crown Court may—

(a) discharge the order;

(b) vary the order.

Rules of court

6 Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to disclosure orders.

Offences

7 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a disclosure order.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);

(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

(3) A person commits an offence if, in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.

(4) A person guilty of an offence under sub-paragraph (3) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both);

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).

Statements

8 (1) A statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.

(2) Sub-paragraph (1) does not apply on a prosecution for—

(a) an offence under paragraph 7(3),

(b) an offence under section 5 of the Perjury Act 1911 or Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements), or

(c) some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2)(c) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

9 (1) This paragraph applies for the interpretation of this Part of this Schedule.

(2) “Disclosure order” has the meaning given by paragraph 2.

(3) “Judge” means—

(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;

(b) in relation to Northern Ireland, a judge of the Crown Court.

(4) “Senior officer” means—

(a) a constable of at least the rank of superintendent;

(b) the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.

(5) “Document” means anything in which information of any description is recorded.

(6) “Excluded material”—

(a) in relation to England and Wales, has the same meaning as in the Police and Criminal Evidence Act 1984;

(b) in relation to Northern Ireland, has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(7) The terms defined in paragraph 1 have the meanings given in that paragraph.

Part 2

Scotland

Introductory

10 (1) This Part of this Schedule applies in Scotland.

(2) In this Part of this Schedule “relevant investigation” and “relevant property” have the same meaning as in Part 1 of this Schedule.

Disclosure orders

11 (1) The Lord Advocate may apply to the High Court of Justiciary for a disclosure order.

(2) The application must state that a person or property specified in the application is subject to a relevant investigation and the order is sought for the purposes of the investigation.

(3) The court may grant the application if satisfied that conditions 1 to 3 are met.

(4) Condition 1 is that there are reasonable grounds for suspecting that the property specified in the application is relevant property.

(5) Condition 2 is that there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation.

(6) Condition 3 is that there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.

(7) A disclosure order is an order authorising the Lord Advocate to give to any person the Lord Advocate considers has relevant information notice in writing requiring the person to do any or all of the following with respect to any matter relevant to the investigation—

(a) answer questions, either at a time specified in the notice or at once, at a place so specified;

(b) provide information specified in the notice, by a time and in a manner so specified;

(c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.

(8) “Relevant information” means information (whether or not contained in a document) which the Lord Advocate considers to be relevant to the investigation.

(9) A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced.

Supplementary provision

12 (1) A disclosure order does not confer the right to require a person—

(a) to answer any question,

(b) to provide any information, or

(c) to produce any document,

which the person would be entitled to refuse to answer, provide or produce in legal proceedings on grounds of confidentiality of communications.

(2) A disclosure order has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

(3) The Lord Advocate may take copies of any documents produced in compliance with a requirement to produce them imposed under a disclosure order.

(4) The documents may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.

(5) But if the Lord Advocate has reasonable grounds for believing that—

(a) the documents may need to be produced for the purposes of any legal proceedings, and

(b) they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.

Applications

13 An application for a disclosure order may be made without notice to a judge of the High Court of Justiciary.

Discharge or variation

14 (1) An application to discharge or vary a disclosure order may be made to the High Court of Justiciary by—

(a) the Lord Advocate;

(b) any person affected by the order.

(2) The High Court of Justiciary may—

(a) discharge the order;

(b) vary the order.

Rules of court

15 (1) Provision may be made in rules of court as to the discharge and variation of disclosure orders.

(2) Rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.

Offences

16 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a disclosure order.

(2) A person guilty of an offence under sub-paragraph (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

(3) A person commits an offence if, in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.

(4) A person guilty of an offence under sub-paragraph (3) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both);

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both).

Statements

17 (1) A statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.

(2) Sub-paragraph (1) does not apply on a prosecution for—

(a) an offence under paragraph 16(3),

(b) perjury, or

(c) some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2)(c) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

18 (1) This paragraph applies for the interpretation of this Part of this Schedule.

(2) “Disclosure order” has the meaning given by paragraph 11.

(3) “Document” means anything in which information of any description is recorded.”—(Tom Tugendhat.)

This new Schedule provides for disclosure orders to be made. These orders authorise constables and NCA officers (the Lord Advocate in Scotland) to require information for the purpose of relevant investigations as defined in paragraph 1 of the Schedule.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 2

Customer information orders

1 (1) An appropriate officer may apply to a judge for a customer information order.

(2) The judge may grant the application if satisfied that—

(a) the order is sought for the purposes of an investigation into foreign power threat activity, and

(b) the order will enhance the effectiveness of the investigation.

(3) “Appropriate officer” means—

(a) in relation to England and Wales or Northern Ireland, a constable or a National Crime Agency officer;

(b) in relation to Scotland, the procurator fiscal.

(4) The application must state that—

(a) a person specified in the application is subject to an investigation within sub-paragraph (2)(a) and the order is sought for the purposes of the investigation;

(b) the order is sought against the financial institution or financial institutions specified in the application.

(5) The application may specify—

(a) all financial institutions,

(b) a particular description, or particular descriptions, of financial institutions, or

(c) a particular financial institution or particular financial institutions.

(6) A customer information order is an order authorising an appropriate officer to give to a financial institution covered by the application notice in writing requiring it to provide any customer information it has relating to the person specified in the application.

(7) The financial institution must provide the information at or by the time, and in a manner, specified in the notice.

(8) A financial institution is not bound to comply with a requirement imposed by a notice given under a customer information order unless evidence of authority to give the notice is produced.

(9) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.

(10) Sub-paragraph (9) does not apply in relation to Scotland.

Supplementary provision

2 A customer information order has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

Applications

3 An application for a customer information order may be made without notice to a judge in chambers.

Discharge or variation

4 (1) An application to discharge or vary a customer information order may be made to the court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the customer information order was made by a constable, an application to discharge or vary the order may be made by a different constable.

(3) If the application for the customer information order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.

(4) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.

(5) Sub-paragraph (4) does not apply in relation to Scotland.

(6) The court may—

(a) discharge the order;

(b) vary the order.

Rules of court

5 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to customer information orders.

(2) In Scotland rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.

Offences

6 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a customer information order.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);

(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both);

(c) on summary conviction in Scotland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

Statements

7 (1) A statement made by a person in response to a requirement imposed under a customer information order may not be used in evidence against them in criminal proceedings.

(2) Sub-paragraph (1) does not apply on a prosecution for an offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

8 (1) This paragraph applies for the interpretation of this Schedule.

(2) “Appropriate officer” has the meaning given by paragraph 1(3).

(3) “The court” means—

(a) in relation to England and Wales or Northern Ireland, the Crown Court;

(b) in relation to Scotland, the sheriff.

(4) “Customer information”—

(a) in relation to England and Wales or Northern Ireland, has the meaning given by section 364 of the Proceeds of Crime Act 2002;

(b) in relation to Scotland, has the meaning given by section 398 of that Act.

(5) “Financial institution” has the same meaning as in Schedule 6 to the Terrorism Act 2000 (see paragraph 6 of that Schedule).

(6) “Judge” means—

(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;

(b) in relation to Northern Ireland, a judge of the Crown Court;

(c) in relation to Scotland, the sheriff.

(7) “Senior officer” means—

(a) a constable of at least the rank of superintendent;

(b) the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.”—(Tom Tugendhat.)

This new Schedule provides for customer information orders to be made. These orders authorise constables and NCA officers (the procurator fiscal in Scotland) to obtain customer information from financial institutions.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Account monitoring orders

1 (1) An appropriate officer may apply to a judge for an account monitoring order.

(2) The judge may grant the application if satisfied that—

(a) the order is sought for the purposes of an investigation into foreign power threat activity, and

(b) the order will enhance the effectiveness of the investigation.

(3) “Appropriate officer” means—

(a) in relation to England and Wales or Northern Ireland, a constable or a National Crime Agency officer;

(b) in relation to Scotland, the procurator fiscal.

(4) The application must state that the order is sought against the financial institution specified in the application in relation to information which—

(a) relates to an account or accounts held at the institution by the person specified in the application (whether solely or jointly with another), and

(b) is of the description so specified.

(5) The application may specify information relating to—

(a) all accounts held by the person specified in the application at the financial institution so specified,

(b) a particular description, or particular descriptions, of accounts so held, or

(c) a particular account, or particular accounts, so held.

(6) An account monitoring order is an order that the financial institution specified in the application must—

(a) for the period specified in the order,

(b) in the manner so specified,

(c) at or by the time or times so specified, and

(d) at the place or places so specified,

provide information of the description specified in the application to an appropriate officer.

(7) The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

Applications

2 An application for an account monitoring order may be made without notice to a judge in chambers.

Discharge or variation

3 (1) An application to discharge or vary an account monitoring order may be made to the court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the account monitoring order was made by a constable, an application to discharge or vary the order may be made by a different constable.

(3) If the application for the account monitoring order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.

(4) The court may—

(a) discharge the order;

(b) vary the order.

Rules of court

4 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.

(2) In Scotland rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.

Effect of orders

5 (1) In England and Wales and Northern Ireland, an account monitoring order has effect as if it were an order of the court.

(2) An account monitoring order has effect in spite of any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

Statements

6 (1) A statement made by a person in response to an account monitoring order may not be used in evidence against them in criminal proceedings.

(2) But sub-paragraph (1) does not apply—

(a) in the case of proceedings for contempt of court;

(b) on a prosecution for an offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2)(b) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

7 (1) This paragraph applies for the interpretation of this Schedule.

(2) “Appropriate officer” has the meaning given by paragraph 1(3).

(3) “The court” means—

(a) in relation to England and Wales or Northern Ireland, the Crown Court;

(b) in relation to Scotland, the sheriff.

(4) “Financial institution” has the same meaning as in Schedule 6 to the Terrorism Act 2000 (see paragraph 6 of that Schedule).

(5) “Judge” means—

(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;

(b) in relation to Northern Ireland, a judge of the Crown Court;

(c) in relation to Scotland, the sheriff.”—(Tom Tugendhat.)

This new Schedule provides for account monitoring orders to be made. These orders may require financial institutions to provide specified information relating to accounts.

Brought up, read the First and Second time, and added to the Bill.

[Tom Tugendhat]

I beg to move amendment 66, Title, line 3, after “2007;” insert

“for the registration of certain arrangements with, and activities of, specified persons and foreign principals;”

This amendment amends the long title to add a reference to the registration scheme.

[Tom Tugendhat]

This is a simple change in the title of the Bill and I hope that everyone can support it.

Amendment 66 agreed to.

[Holly Lynch]

On a point of order, Mr Gray. If I may—

[The Chair]

Order. No, no—we have not finished yet. Hang on.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Holly Lynch]

I am so grateful for your guidance, Mr Gray. I want to put on the record my thanks to some of those who have supported the Committee’s deliberations and made our scrutiny possible. I thank the Clerks—Bradley Albrow in particular has been utterly unflappable, often in the face of absolute chaos. He has been a massive help to me and, I am sure, to many other Members, and I thank him for his services.

I also thank Home Office officials and the UK intelligence community, who, I think all Members will agree, have been transparent and engaged in this process, ensuring that we are—given the subject matter—as informed as we can be. I have met several members of the security services over the course of the Bill Committee; funnily enough, I do not have full names for any of them. I thank MI5 director general Ken McCallum and his team for all their support. I also thank Detective Superintendent Darren Hassard and Commander Richard Smith from counter-terrorism policing for their insight on provisions relating to their work, as well as Professor Thom Brookes and senior lecturer and retired police office Owen West for their invaluable assistance. May I also thank my incredibly dedicated parliamentary assistant, Jamie Welham?

I have been very ably assisted by my fellow shadow Front-Bench colleagues as well as by Labour Back Benchers, and I am eternally grateful to them. As we reach Report, I look forward to following up with the Minister on the detail of exactly what has been promised.

[Tom Tugendhat]

May I thank the shadow Minister, the Member for Halifax—she has been of tremendous assistance to me in the very unusual position that I have found myself in—as well as Opposition Members? I also thank enormously my hon. Friends, who have been extraordinarily generous supporters at times when I have been quite literally learning on the job.

I also thank the Clerks—particularly Chris, who was my first Clerk on the Foreign Affairs Committee, which brought me right back home—Home Office officials, the intelligence community, with whom it is such a pleasure to work again, and of course all those who have contributed to the Bill, including you, Mr Gray. Thank you very much indeed.

National Security Bill

Holly Lynch Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. We have already had four points of order, and we have limited time, so I ask Members to please be mindful of the length of their contributions so that we can get as many people in as we possibly can.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to be back in the Chamber at the Report stage of this hugely important piece of legislation. Bill Committee colleagues will join me in saying that it was not straightforward, for all the reasons that were highlighted in the multiple points of order. The Committee had no less than four Ministers and three Government Whips, and was forced to adjourn twice. Since Second Reading, the Bill has been the responsibility of three different Home Secretaries in—remarkably—the Governments of three different Prime Ministers.

We got off to a shaky start on the first day of the Bill Committee when the Whip, the hon. Member for North Cornwall (Scott Mann), who I am pleased has joined us this afternoon, was asked to act up as a Minister only minutes before the start. On one day, the Committee had to be adjourned because the second Minister was missing in action—the circumstances are still a mystery to this day. It was something of a relief, then, when the current Minister took office and we could turn to the serious detail of scrutinising and delivering long overdue and incredibly necessary national security legislation.

As we have said before, many of the new measures in the Bill have been born out of recommendations in the Intelligence and Security Committee’s 2020 Russia report and in the Law Commission’s “Protection of Official Data” report. With those solid foundations, we have been keen to work with Government to move the legislation forward and close the gaps in our defences. That could not be more timely in the light of stark warnings given by the director general of MI5 today, including about the fact that there have been at least 10 attempts to kidnap or even kill UK-based critics of the Iranian regime since January of this year.

That is not to say that we do not have some outstanding concerns about the detail of the provisions. In speaking to all the amendments grouped with new clause 9, I turn first to amendment 14, which was tabled by the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis). I will spend some time discussing the detail of this amendment, because it is so important.

The original clause 23—now clause 27—was a big focus for hon. Members on both sides of the House on Second Reading. Crucially, it did not have the support of Opposition members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community. We will always look to work with the intelligence services to find solutions to any barriers they face in undertaking their invaluable work to keep the UK safe. As things stand, however, we have been unable to get an operational understanding of why the clause is necessary.

The security services have told me directly why they believe that they need clause 27. They say that schedule 4 to the Serious Crime Act 2007 allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community, and that an offence can arise when support—for example, intelligence shared in good faith—later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact, which requires resolution. We are sympathetic to that view; we recognise that for perhaps quite junior members of staff to face that burden of potential liability when carrying out their proper functions under instruction does not feel quite right. However, we have sought throughout the process to find a way through that does not involve what feels like gold-plating of exemptions for the security services, which could erode entirely appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners.

As the Minister knows, there is a reasonableness defence under section 50 of the Serious Crime Act, which recognises that there may be occasions when it can be shown that an individual’s actions were justified in the circumstances. Of course, a prosecution would also have to be deemed to be in the public interest. On further probing of these defences, it seems that it is not the case that the reasonableness defence is not strong enough; rather, it is untested, as no such case has been brought. We do not believe that the fact that an apparently robust defence is untested makes a strong enough case for the proposals in clause 27. We hope that properly authorised activity to protect national security should and would be interpreted as reasonable.

We have sought legal advice, including from a King’s counsel who undertakes a great deal of work in the Investigatory Powers Tribunal, and engaged with a range of stakeholders who feel genuinely involved in this space. Given that we already have section 7 of the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil or criminal liability for pre-authorised crimes abroad, why do we need the changes proposed in clause 27? Crucially, the existing scheme requires the UK intelligence community to secure permission in advance from the Secretary of State, requiring the Secretary of State’s personal approval, with safeguards in the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge. None of those safeguards are present in clause 27; it simply removes the relevant criminal liability. There would be no need to go to a Minister for approval; there would be no warrant for the Investigatory Powers Commissioner to consider.

Thirdly—the Minister and I have debated this—the Bill as drafted diminishes the role of a Minister in decision-making and accountability structures. Ministers will no longer need to make the difficult judgement, reviewed by the Investigatory Powers Commissioner, of whether to grant an authorisation under section 7 of the Intelligence Services Act. The Government have been keen to stress their commitment to the Fulford principles—“The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”, making it clear that:

“The UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment…or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT.”

However, those commitments are not on the face of the Bill.

With the understanding that there will be operational elements to these provisions, the details of which have not been and cannot be shared, we have pushed for engagement with the ISC, which is entirely the right place for those operational examples to be considered further. Were ISC members to be convinced of the case for clause 27, we might be in a different place. On that basis, we cannot support clause 27 and will vote for it to be deleted by amendment 14.

On a similar point, although we welcome much of the Bill, it is right that any provisions that include new and substantial powers are constantly evaluated for their efficacy and proportionality. Clause 53 recognises that.

[Sir John Hayes]

Efficacy and proportionality are the twin guarantees that underpin all security legislation and activity, as the hon. Lady is aware, but if anything, clause 13, for example, should go further than it currently does. She will know that that clause is built on the idea of intention—that people must intend to do harm—but people should know that they are likely to do harm if they act recklessly, and the Bill could be expanded in that direction. There is an unholy trinity of anarchists, liberals and Bolsheviks who oppose all legislation of this kind, but if anything, this legislation should be warmly welcomed and go further than it does.

[Holly Lynch]

I am grateful for the intervention. The points that I am about to make about the value and role of an independent reviewer of this legislation relate to how, if some of the thresholds are not in the right place, such a reviewer can not only be both a check and a balance on the powers but make recommendations for going further in the legislation if we find that there is an operational case for doing so. That is the sensible and constructive point that the right hon. Gentleman knows I am making.

Clause 53 recognises the need for evaluation but deems only part 2 of the Bill to be necessary for review by an independent reviewer and fails to be explicit about who that independent reviewer will be. The Minister has been unable to confirm who will perform this oversight function, which we believe is integral to finding the appropriate balance of powers and freedoms. The scrutiny of terrorism legislation provided by Jonathan Hall KC has been invaluable. The independent reviewer of terrorism legislation function has identified weaknesses in terrorism legislation and highlighted areas where stronger safeguards are needed, as well as providing crucial and checks and balances on the powers.

When he gave evidence to the Bill Committee, I asked Jonathan Hall whether there is a logic to his office taking on the additional responsibilities and whether he had the capacity to undertake that work. He said:

“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 6, Q4.].

With the highest regard for Jonathan Hall, we recognise the merit in adding to his remit the responsibilities created by clause 53. We can see the benefit of a coherent, joined-up approach to assessing both counter-terrorism and state threat legislation.

That said, were the Minister to make a case for the creation of a brand-new position, exclusively for the independent review of laws concerning state threats, we would certainly be open to that. We are, though, now reaching the Bill’s final Commons stages, and we are very much overdue an agreement that the role will begin immediately once the Bill is enacted, clarity on who will undertake the work, and a commitment that all the new provisions in the Bill will be considered in an annual review. Successive Ministers have understood the point and committed to sorting the situation out, but here we are with no progress and nothing to show for it on the face of the Bill, so we are keen to push new clause 3 to a vote.

In Committee, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) made a powerful case for the provisions in amendment 6, which sits alongside paving amendments 5 and 7. We made clear our concerns about part 4 of the Bill in the Committee. The restrictions on access to civil legal aid stand to do more harm than good if we do not recognise the problems in such an approach.

Let us consider the types of civil cases that legal aid might be needed for. People find themselves in civil and family court proceedings and in need of legal aid support for a multitude of reasons, including housing issues, debt problems and domestic abuse. For example, a victim of domestic abuse might need legal aid to help her to seek an injunction against her abuser. Non-molestation orders protect a victim or their child from being harmed or threatened by their abuser, while occupation orders decide who can live in a family home or enter the surrounding area. Such injunctions protect victims and children in particular. They save women’s lives. They are legal measures that protect women from violence.

My hon. Friend the Member for Birmingham, Yardley made the powerful point in Committee, based on her years of working in the sector, that it is easy to say that someone who has engaged in that type of criminality is not deserving of legal aid, but what if a woman’s abuser is a terrorist? The nature of terrorist offenders means that that is too often the case.

[Mr Kevan Jones]

My hon. Friend is right that we discussed the issue in detail in Committee. Clearly, the only reason is seen to be that someone has been involved in terrorism. Does she agree, however, that there are many other people, such as rapists, paedophiles and murderers, of whom we also have a low opinion? The logical conclusion is surely that, if we restrict it in one area, we should restrict it for everyone.

[Holly Lynch]

I am grateful to my right hon. Friend for making that powerful point. He is absolutely right that there is a distinct lack of consistency. If we are singling out specific criminal offences that we do not like, there is more that we could do to ensure that there is some consistency in that approach. There will be vulnerable people here who we want to check are not falling through the gaps, which would make the situation worse for us all.

What if a woman’s abuser is a terrorist? As I said, the nature of terrorist offenders means that that is often the case. For some of the lower-level offences covered by clauses 84 to 85—for example, that someone made a phone call on behalf of an abuser—it is easy for somebody to say, “I wouldn’t do that, because I’m not a terrorist,” but we all might if we were living in a household where we were terrorised. The danger is that more women in such cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them. That is why we feel strongly that the Government should adopt amendment 6.

On some other changes that we would like to see, we have tabled new clauses 5 and 6. They were drafted in the wake of the revelations that the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was the Foreign Secretary, met former KGB officer Alexander Lebedev without officials or security at the height of the Salisbury poisoning case in 2018. That was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. We still have a series of questions about that encounter, not least who his guest was at that party and why we have not taken steps to sanction Alexander Lebedev, given the assessment of our Five Eyes partner Canada, which has sanctioned him.

Having made the case in Committee for new clauses 5 and 6, which both seek to put safeguards in place to prevent that type of security breach ever happening again, the Minister was keen to stress that he was not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip, as if that time had passed and there was no need for any further changes to the law in this regard. When that exchange happened on the Tuesday, little did the Minister or I know that by the Thursday, remarkably, the right hon. Gentleman would be launching his campaign to come back as Prime Minister. None of us could have foreseen that, which is one more reason why I stress that the clauses would complement the Bill.

I appreciate that new clause 8, tabled by my right hon. Friend the Member for North Durham (Mr Jones), has been deemed to be out of scope of today’s debate, but I remind the Minister of the remarks of the then Home Secretary, the right hon. Member for Witham (Priti Patel), on Second Reading:

“We are not shy of the issue and are certainly not ignoring it, but it is important that we focus on ensuring that individuals can make disclosures safely, which means protecting them through safeguards and proper routes. That work is still under way, and we need to go through it in the right way.”—[Official Report, 6 June 2022; Vol. 715, c. 571.]

We understand that the Home Office has engaged with trusted partners on what options look like in this space. Once again, we are all waiting for further detail on that front.

I now turn to the plethora of Government amendments. Frankly, late in the day additions to the Bill have plagued its scrutiny and Report stage is no different, as many right hon. and hon. Members have already said. I am pleased that the Government heard our concerns about places of detention and have clarified that only places

“owned or controlled by a police force”

can be used as places of detention, which ensures that they will be subject to proper inspection regimes. We are satisfied that the Government have listened, so our amendment 4 is no longer necessary; Government amendment 54 brings those places within the scope of an existing inspection regime.

As the Minister knows, there are still outstanding concerns about the broad nature of clauses 79 to 83 in part 4. We welcome Government amendment 51, however, which seeks to tighten the definition of those in scope of clauses 79 to 83 to those involved in “terrorist wrongdoing”, but that will warrant further exploration in the other place.

On Government amendment 60, like a number of modern slavery charities—the point has already been made by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith)—we are really concerned about the lateness of this addition to the Bill and the scrutiny that has been avoided by adding it to the Bill at the final Commons stages. Justice and Care, which does outstanding work in placing victim navigators within police forces up and down the country, was keen to stress that there has not been any consultation with modern slavery charities concerned that they, like us, have had insufficient time to fully consider the possible impact on modern slavery victims. I could have asked the Independent Anti-Slavery Commissioner for their views, except there isn’t one. The Government have failed to appoint a new commissioner since Dame Sara left office in April, so I take this opportunity to suggest that the Government address that now as an urgent priority. I have to ask the Minister to outline the rationale for this move, and I want to be clear just how unhappy we are with this provision at such a late stage.

I am grateful to my hon. Friend the Member for Rhondda (Chris Bryant), who is so often my partner in crime fighting, for his amendments. I know he has a great deal of understanding in this area that has shaped the detail of his amendments, so I hope the Government are reflecting carefully on those.

Once again, we have sought at every stage and with every Minister to engage on the Bill constructively. We know that our police forces and security services need the provisions in the Bill to be able to keep us safe from the hostile state threats that are increasingly testing the UK’s resilience. I hope the Minister, who to his credit had to pick up the Bill in the final stages of the Bill Committee, hears our outstanding concerns today, recognises the spirit in which we strive to find solutions and continues to work with us towards a robust and proportionate Bill we can all have confidence in.

[Mr David Davis (Haltemprice and Howden) (Con)]

I welcome the Minister to his post. He is very much a round peg in a round hole—despite my historic critique of the Home Office, that is meant as a compliment. I thank him for seeing me and my colleague, the hon. Member for Barnsley Central (Dan Jarvis), on the amendment the other day. He will be unsurprised that he did not persuade me, but I thank him for the time in any event. In view of the short time, I will focus mostly on amendment 14, which I hope we will press to a vote. It is in my name and that of the hon. and gallant Member for Bromley—not Bromley, but Barnsley Central; not quite Bromley. That amendment strikes out clause 27.

A decade and a half ago, the British public were shocked to hear stories of British complicity in American and other countries’ acts of kidnap, rendition, torture and assassination, typically but not always by drone strikes, with the collateral damage that that entailed. Collateral damage in this context is a euphemism for the deaths of innocent women and children who happen to be standing near the original target. I use this stark language to make plain the potential consequences of what might seem like bland legalistic language in the Bill.

The legal basis of those actions—I almost said atrocities, but of those actions—was the Intelligence Services Act 1994, when we first recognised the operation of the Secret Intelligence Service. Most notably, it inserted the melodramatically named “007 clause”—section 7—which empowered Ministers to authorise criminal behaviour overseas. I was one of the Ministers who took that Bill through the House. We Ministers were briefed very firmly that, in practice, that section would authorise bugging, burglary and blackmail—the normal behaviour of intelligence agencies seeking to penetrate enemy states and organisations—not kidnap, not torture and most certainly not a licence to kill.

We the Ministers on that Bill gave our word to the House that that was what it was for, but a decade later section 7 was used to authorise the enabling of rendition, torture and quite possibly assassination as well. We know the names of several victims of UK complicity: Binyam Mohamed, Abdel Hakim Belhaj, Fatima Boudchar, his wife, and Rangzieb Ahmed, to name just a few.

--- Later in debate ---

[Holly Lynch]

I rise to confirm that the Labour party supports the Third Reading of this Bill.

It is the first job of every Government to defend our national security from hostile states that wish to do our country harm, and from malign actors and extremists who want to undermine our democracy and everything we stand for. That is not a principle that divides us along party lines; it unites every Member of this House. It is why throughout the Bill’s passage we have worked with the Government to get the detail right and to defend our shared interests, and why we will continue to do so.

Our world-leading intelligence and security agencies do incredible and unseen work, day in, day out, to keep us safe. We pay tribute to them and thank our brave officers and staff for their service. I also thank those in policing, the Home Office and the intelligence community for the way they have engaged with me and other hon. and right hon. Members involved in scrutiny of the Bill.

The threat posed by hostile states is on the rise. The annual threat update given today by Ken McCallum, the director general of MI5, was a daunting assessment of the breadth and nature of the threats facing the UK. However, we remain concerned about clause 27 in particular and some of the details of the Bill, and we will continue to work with the Government and all those in the other place to find resolutions to those outstanding issues.

Labour supports the Bill because we could not take national security more seriously. We know that our democracy can be defended only when our agencies are equipped with the powers and tools they need, and when we can all have confidence in the procedures and oversight that accompany them.

National Security Bill

Holly Lynch Excerpts

Consideration of Lords amendments
Wednesday 3rd May 2023 Commons Chamber

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Minister.

[Holly Lynch (Halifax) (Lab)]

We on the Labour Benches are in no doubt about the importance of the Bill. Transnational repression and interference from hostile state actors and their proxies are testing the UK’s defences as never before. As the global landscape continues to change at a staggering pace, interference from countries that do not share our values is nothing new. However, the breadth and enduring nature of the threats we are now facing is a contemporary challenge, combined with the technology and methods used by those seeking to undermine us, which are new and enhanced.

Today is World Press Freedom Day, giving us a chance to recommit ourselves to defending press freedom, but also to acknowledge that many of the threats to which our security services and counter-terrorism police are responding here in the UK relate to the protection of journalists, from the—thankfully disrupted—assassination and kidnap plots against UK residents who are perceived as enemies of Iran owing to their coverage of the protests and the regime’s brutal crackdown, to the unacceptable harassment reported by Caoilfhionn Gallagher KC and her colleagues acting on behalf of the British national Jimmy Lai, the pro-democracy newspaper owner currently detained in Hong Kong. We must challenge that overseas and refuse to tolerate it here.

We have always understood that we need the new provisions in the Bill, but the Minister will understand where I am coming from when I say that this has been far from a shining example of best practice in passing legislation. The churn in the Government since the Bill was tabled in May last year, coupled with the late and lengthy additions to it, has meant that scrutiny has been truncated on occasion, but it is all the more crucial as a result. It is unusual for a Bill to come back from the other place with—if I am not mistaken—no fewer than 117 Government amendments, but that is why I, like the Minister, am particularly grateful to our colleagues at the other end of the building, where operational expertise in particular has had a positive impact in shaping and sharpening these measures to ensure that they deliver the protections we need and the safeguards we can all trust.

--- Later in debate ---

[Sir Julian Lewis]

For the record, I think I should say that during her very short tenure the current Prime Minister’s immediate predecessor, my right hon. Friend the Member for South West Norfolk (Elizabeth Truss), did offer to come and meet the ISC. I hope that is an example that her successor will follow soon, but we are waiting for a similar commitment to be made.

[Holly Lynch]

I am grateful to the Chair of the ISC for that clarification. It was indeed a short tenure, and we will never know whether that meeting would have come to fruition, but I hope the spirit was there then and is continued. Beyond the spirit, however, let us hope that we can nail down some of this today.

It has been argued that Select Committees should instead have primacy in fulfilling the role. Pages 42 and 43 of the annual report list numerous Departments that have various security and intelligence functions that they are expected to oversee. However, these Committees, while no doubt providing robust scrutiny, simply do not have the same powers and security clearance as the ISC members and so cannot fulfil that duty to the same level. The Minister might well say that this amendment is not required, but the problem remains, as we have already discussed, and there is a need to address the issues raised by the ISC’s most recent report, so I look forward to the Minister reflecting once again on his position on that in his closing remarks.

Lords amendment 22, tabled by Lord Carlile, to whom we have already paid tribute today, enjoyed broad support in the other place. The amendment would require UK political parties to publish a policy statement to identify donations from foreign powers, either directly or indirectly. Moreover, the amendment would bind political parties to making an annual statement of risk management to the Electoral Commission and create a duty for the Secretary of State to publish guidelines on these provisions. In the most recent annual threat update, the director general of MI5, Ken McCallum, said:

“We see the Chinese authorities playing the long game in cultivating contacts to manipulate opinion in China’s favour—seeking to co-opt and influence not just prominent Parliamentarians from across the political landscape, but people much earlier in their careers in public life, gradually building a debt of obligation.”

We know that offering donations to individuals and political parties is unfortunately a tried and tested approach used by hostile state actors. That is not in doubt. The Minister might tell me that Lords amendment 22 is unnecessary and that it is covered by other provisions, but can he tell me that those other provisions are effective and that dirty money, with a price attached, is not finding its way into our system and our democracy? The need for such provisions is both pertinent and serious. In 2020, a report by the Intelligence and Security Committee found that members of the Russian elite linked to Putin had donated to UK political parties.

This amendment would also guard against undue Chinese influence. The Minister was in Belfast when we had an urgent question in the House in April on Chinese police stations in the UK—the second urgent question on that issue. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), stated that it had been reported in The Times that

“a Chinese businessman linked to an alleged Chinese secret police station in London has attended Chinese Communist party political conferences, is linked to the united front work department and has organised Tory party fundraising dinners and attended events with Conservative Prime Ministers.”—[Official Report, 19 April 2023; Vol. 731, c. 248.]

Just last month, the Good Law Project published damning revelations that since the start of Russia’s invasion of Ukraine in 2022 the Conservatives had accepted at least £243,000 from Russian-associated donors, some of whom were linked to sanctioned businesses and organisations.

The Electoral Commission has produced a helpful briefing on Lords amendment 22. It states:

“Enhanced due diligence and risk assessment processes would help campaigners identify foreign money, identify potential proceeds of crime, and establish a culture of ‘know your donor’ within parties—similar to the ‘know your customer’ approach, encouraged through Anti-Money Laundering regulations for the financial sector.”

It goes on to stress:

“These requirements could be introduced in a way that recognises the need for proportionality”—

this speaks to the Minister’s concerns—

“with different requirements depending on the size of a regulated entity’s financial infrastructure, or the size of a donation, to prevent the checks becoming a disproportionate burden on smaller parties and campaigners.”

Spotlight on Corruption argues:

“The rules that are supposed to prohibit foreign donations—in the Political Parties, Elections and Referendums Act 2000—are riddled with loopholes which enable foreign money to be channelled to political parties and MPs through lawful donors.”

The Committee on Standards of Public Life, in its 2021 “Regulating Election Finance” report, recommended that laws should be updated and that

“parties and non-party campaigners should have appropriate procedures in place to determine the true source of donations. Parties and campaigners should develop a risk-based policy for managing donations, proportionate to the levels of risk to which they are exposed”.

There is an evidence base for such action. We know that the risk is there, and this is a rational and proportionate response to that risk. If the Minister and the Government reject these proposals, the electorate will draw their own conclusions as to why.

I have set out the case for the Lords amendments before us today. Before closing, I want to join the Minister in paying tribute to the incredible work that our security services and police forces do every day. We very much recognise that the additional tools in the Bill will assist them in that important work. We have not agreed with every detail of the Bill, but I am pleased that we have made a great deal of progress in the areas where we have had differences. We are in no doubt that many of the new powers within it are necessary and needed urgently. I hope that the Minister will be persuaded by the arguments he has yet to hear in the Chamber today, and that he will reflect again on the merits of Lords amendments 22 and 122.

National Security Bill

Holly Lynch Excerpts

Consideration of Lords message
Monday 26th June 2023 Commons Chamber

[Tom Tugendhat]

The right hon. Gentleman, as he will understand, raises an individual about whom I will not comment. The Government will not take a position of that nature on an individual based on such comments. I will not address him specifically.

What I will say is that there have been reports of foreign donations getting into political parties—that is true. What is also true is that political parties have a responsibility to check the sources of their donations, and all British citizens have the right to donate. If a specific accusation has not been reported to the Electoral Commission and investigated, and if a person has not been found guilty, the right hon. Gentleman will understand that I cannot make any further comment.

[Holly Lynch (Halifax) (Lab)]

I thank the Minister for his opening contribution as these two additions to the National Security Bill return to the Commons once again.

The Minister has made the case for Government amendment (a) in lieu of Lords amendment 122B. I have a great deal of respect for him, as he knows, but this amendment in lieu, tabled in the name of the Home Secretary, essentially says that this House and the other House have a point, that the Government want to give themselves maximum wiggle room to be able to avoid doing anything about addressing the point by tabling an amendment in lieu that is much wishier and much washier than the clarity of our Lords amendment.

Lords amendment 122B, tabled by my noble Friend Lord Coaker, would have introduced a duty to update the Intelligence and Security Committee’s memorandum of understanding, rather than a requirement to consider whether the MOU needs updating. What does that actually mean? Is there a proposed framework or a timetable for deliberations? The Lords amendment was not tabled for fun; it was tabled because the Intelligence and Security Committee performs a vital function, but its ability to perform that function is being eroded.

The Lords amendment followed a recommendation made by the ISC in its 2021-22 annual report, which looked back to the Committee’s origins, when the then Security Minister told Parliament that it was

“the intention of the Government that the ISC should have oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future.”––[Official Report, Justice and Security Public Bill Committee, 31 March 2013; c. 98.]

[Maria Eagle]

Does my hon. Friend agree that intelligence and security activities are now undertaken by a wider assortment of policy Departments, including those that generally do not carry out national security-related activities? Those teams are not listed in the ISC’s memorandum of understanding, and therefore there is a scrutiny gap that cannot be fixed unless the memorandum of understanding is changed.

[Holly Lynch]

I am grateful to my right hon. Friend for making that important point. The annual report lists a number of policy Departments. Although the Select Committees do incredibly important work, they are not able to see the same information because their members do not have the same clearance as members of the ISC. It is quite right that such information and such scrutiny fall to the ISC, which alone can do that important work.

We have previously discussed that one of the starkest revelations from that annual report is that the ISC has not been able to secure a meeting with a Prime Minister since December 2014, nearly nine years ago. I welcomed the Chair of the ISC’s intervention when we debated the merit of the previous amendment, saying that the right hon. Member for South West Norfolk (Elizabeth Truss) had pledged to meet the ISC. However, given her exceptionally short tenure in office, we will never know if that meeting would have taken place—her name is No. 4 on the list of five Prime Ministers who have been in office since 2014.

Such a meeting is just one of the considerations for an updated MOU, but knowing how often this issue has come up, both in this House and in the other place, I wonder whether the current Prime Minister now has a date in the diary to meet the ISC. If we are to take Government amendment (a) at its word, arranging that meeting is the very least the Government could do to be able to point to some progress. Alas, it appears that they cannot point to that progress.

I am also interested to know whether the Government have spoken to the ISC about Government amendment (a). Given that the amendment seeks to assure us that the Government intend to do due diligence on engaging with the ISC, have they engaged the ISC about the amendment? Hopefully the Minister might be able to shed some light.

[Jim Shannon (Strangford) (DUP)]

I commend the shadow Minister for her thoughts. I suppose the rationale for opposing Lords amendment 122B is the Justice and Security Act 2013. Does she have any idea why the Government are reluctant to concede to a review as the legislation evolves? That seems to be a simple way of doing it.

[Holly Lynch]

It would be unwise to speculate at the Dispatch Box, but I am grateful to the hon. Gentleman for making that point. In the absence of clarity, he is right to put that question to the Government. Why have we not seen progress on this? It would seem to be sensible and proportionate to expect that engagement happens between the Government and the Prime Minister and the Intelligence and Security Committee, and happens on a regular basis.

Lords amendment 22B, tabled by Lord Carlile—once again, let me thank him for his services to this legislation—has continued to enjoy broad support, both across the Benches inside Parliament and outside. We know, from examples that have been exposed and from the most recent annual threat assessment by the director general of MI5, Ken McCallum, that it deals with one of the ways hostile state actors and their proxies are seeking to gain influence within our democracy. When we debated the merit of the previous amendment on this matter, I shared the examples of those linked to so-called Chinese secret police stations who had been involved in organising Conservative fundraising dinners. I also cited the Good Law Project’s research, which claims that the Conservatives have accepted at least £243,000 from Russian-associated donors, some of whom were linked to sanctioned businesses and organisations, since the start of Russia’s invasion of Ukraine.

There is a comprehensive case for these proportionate changes. The Electoral Commission has said:

“Enhanced due diligence and risk assessment processes would help campaigners identify foreign money, identify potential proceeds of crime, and establish a culture of ‘know your donor’ within parties—similar to the ‘know your customer’ approach, encouraged through Anti-Money Laundering regulations for the financial sector.”

I hope the Minister is persuaded by its argument that:

“These requirements could be introduced in a way that recognises the need for proportionality, with different requirements depending on the size of a regulated entity’s financial infrastructure, or the size of a donation, to prevent the checks becoming a disproportionate burden on smaller parties and campaigners.”

Similarly, Spotlight on Corruption has argued:

“The rules that are supposed to prohibit foreign donations are riddled with loopholes which enable foreign money to be channelled to political parties and MPs through lawful donors.”

That point has just been made by my right hon. Friend the Member for Birmingham, Hodge Hill (Liam Byrne). Furthermore, the Committee on Standards of Public Life, in its 2021 “Regulating Election Finance” report, recommended that laws should be updated and that

“parties and non-party campaigners should have appropriate procedures in place to determine the true source of donations. Parties and campaigners should develop a risk-based policy for managing donations, proportionate to the levels of risk to which they are exposed”.

We know that the risk is there, and Lords amendment 22B is a rational and proportionate response to that risk. The Minister has said that the Lords amendment is unnecessary and that donations are covered by other provisions, but I ask him once again, can he truly assure us that dirty money, with a price attached, is not finding its way into our system and our democracy?

[Liam Byrne]

My hon. Friend is making a brilliant speech. Does she agree that the scale of this potential risk is now unprecedented, not least because in 2019 we saw the most expensive election year in British political history? More than £100 million flowed into British political parties then. Does that not underline the obligation on all of us to make sure that every penny of that money is clean?

[Holly Lynch]

I am grateful to my right hon. Friend for that, as he is absolutely right. I think we can all come together to recognise the responsibility that falls to all of us to clean up our democracy as much as we can. The world has changed, even since we started work on this legislation well over 12 months ago. The role of hostile state actors and their conduct in the world, and the interference that we are having to take every measure to protect ourselves from, means that these proposals are needed more than ever, so he is absolutely right to make that point.

If the Minister and the Government reject these proposals, the electorate will draw their own conclusions as to why. I will be listening carefully to the other contributions and to the Minister’s closing remarks. I am pleased that the Government have recognised the need to have a look at the updated MOU for the ISC—I just wish there was some substance to their amendment.

Once again, in case we do not see the Bill back again in the Commons, may I take the opportunity to thank all those who have worked so hard on it, and the law enforcement officers and security services who work so hard, every day, to keep us safe?

[Several hon. Members rose—]