National Security Bill

Jeremy Wright Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Priti Patel]

Without pre-empting the work that is taking place in Government right now, I want to give that assurance. That is also based on the Law Commission’s recently published review. However, as I have already said, a wide range of work is required in terms of engaging stakeholders and looking at all aspects of the law itself. These issues take time, but the Government are working on them right now, and I can assure the House that as soon as we can, when we find the right moment, we will come back to this.

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

I am extremely grateful to my right hon. Friend; I know she wants to move on from this subject and there are other things to speak about, but on the point she makes about further work on the 1989 Act, which she is right to say is complex, does she accept that there is some urgency? Juries are in effect creating their own public interest defences when they try these cases. Would it not be far better if we in Parliament were able to define those defences properly, rather than inviting juries to do so ad hoc, without direction from the judge?

[Priti Patel]

I do not disagree at all with my right hon. and learned Friend. I see my former colleague and former Lord Chancellor, my right hon. and learned Friend the Member for South Swindon, in his place; this is an area that we have discussed in the past because of its significance. The types of crisis we see ourselves involved in—hostile states, deprivations, you name it—are growing and growing. We must find a way to get this right. That is the work we need to do and that must be the right focus of attention, but of course the Bill is part of this Government’s legislative agenda on protecting our country and making it safe.

Colleagues will be aware that the Bill was designed in close consultation with our colleagues and counterparts and the security services. It builds on the Counter-Terrorism and Border Security Act 2019 and on the National Security and Investment Act 2021, which gives the Government powers to scrutinise and intervene in business transactions such as takeovers to protect national security. It also builds on the Police, Crime, Sentencing and Courts Act 2022, which gives the police and the courts greater powers to keep us safe and deliver justice.

We have already touched on the fight against people smugglers and the removal from our country of those who seek to do us harm. The Economic Crime (Transparency and Enforcement) Act 2022 also helps to drive dirty money out of our country. At the same time, the House will be well aware that the Online Safety Bill seeks to tackle extremists and the people who do the most appalling things and hurt children, and I have already touched on the fact that there will be further legislation on economic crime and corporate transparency.

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

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

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

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

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

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

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

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

“proper exercise of any function”

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

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

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

[Edward Timpson (Eddisbury) (Con)]

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

[Sir Jeremy Wright]

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

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

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[Damian Hinds]

I will come back to my right hon. Friend’s point in a moment. To the point that the right hon. Member for Dundee East (Stewart Hosie) made, our position is that a public interest defence is just not the safest and best way for people to make disclosures, for some of the reasons I gave a moment ago.

[Sir Jeremy Wright]

Will the Minister give way?

[Damian Hinds]

If my right hon. and learned Friend will forgive me, I will not.

The existence of a public interest defence could mean that damage from the original disclosure could be compounded by further disclosures that had to be made to argue against and defeat that use of the public interest defence. That could itself then in turn be misused and mean that in some circumstances, even where there were egregious breaches of the law, in effect they could not be prosecuted. That is why, to respond to the point made by the right hon. Member for Dundee East, it is important that we look at the safe and proper channels and methods for making disclosures, where that is important, and there are times when it is. We are looking carefully at that.

To come back to my right hon. Friend the Member for South Holland and The Deepings—this is an important point in general—the defences in part 1 of the Bill provide law enforcement with several options for prosecuting disclosures where the person is acting for or on behalf of a foreign power or where the disclosure would materially assist a foreign intelligence service. That can include bulk disclosures. To be clear, with this Bill, the maximum sentence for an indiscriminate disclosure—a bulk data dump—will be higher than it is today if that act is done for a foreign power or the disclosure would materially assist a foreign intelligence service, even if not procured by that foreign intelligence service itself.

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[Damian Hinds]

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.

A number of Members on both sides of the House have referred to the so-called STPIMs. These are a tool of last resort to prevent, restrict and disrupt an individual’s involvement in state threats activity. In the most serious cases, that could include restricting where an individual can reside, whom they can associate with, and where they can work and study. An STPIM will be used when intelligence exists to confirm that highly damaging threat activity is planned or being undertaken but prosecution is not realistic. As my hon. Friend said, with such measures it is extremely important to have the appropriate safeguards.

I want to reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) that STPIMs will not be imposed through ministerial decision making alone. There will be a process through the courts. A decision by the Secretary of State to impose an STPIM, once they are satisfied that the five conditions set out have been met, will be referred to a judge, and the court’s permission will be sought before an order can be made. The court is specifically tasked with checking that the ministerial decision is not flawed.

My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) and others spoke about civil legal aid for terrorists. Through the Bill, we will take action to restrict access to civil legal aid in England and Wales for individuals convicted of terrorism or terrorism-connected offences since 2001. However, I can assure my right hon. and learned Friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the hon. Member for Garston and Halewood (Maria Eagle) and others who have spoken about this that the restriction of access of civil legal aid applies only to offences involving a sentence of more than two years. In any event, all individuals subject to the restriction can apply for exceptional case funding, and applications will be assessed according to the legislative framework of whether an individual’s human rights may be breached without legal aid. The type of terrorism offence that had been committed would not have bearing on the exceptional case funding decision.

I need to spend a couple of minutes going through the amendments to the Serious Crime Act 2007, an important subject that a number of colleagues have brought up, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Wycombe. The context, of course, is that our intelligence and security services and armed forces do and must work in close partnership with international partners to maximise UK capabilities and their ability to protect national security on our behalf. A key part of that is sharing intelligence and data to support joint objectives.

However, it is possible that such intelligence, when shared in good faith and in accordance with all domestic and international law, could still be capable of contributing, even in a very small or indirect way that was not intended at the time it was shared, to an international partner’s engaging in activity that the UK would not support. The Serious Crime Act 2007 creates an offence where an act is done that is

“capable of encouraging or assisting…an offence”.

That means that in this scenario there is a risk of individuals facing criminal liability, even when they have operated in good faith and in accordance with the guidance and proper authorisation.

Put simply, the Government believe it is not fair to expect the liability for that unforeseen eventuality to sit with an individual officer of our intelligence services or member of the armed forces who is acting with wholly legitimate intentions. Instead, the liability should sit with the UK intelligence community and the military at an institutional level, where they are subject to executive, judicial and parliamentary oversight. The amendment at clause 23 therefore removes that liability for individuals, but specifically only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces. It does not remove liability at an institutional level for any activity.

[Sir Jeremy Wright]

As my right hon. Friend knows, I think there is no dispute across the House that some protection should be available for individuals in those circumstances. The question we have been asking is how different what clause 23 provides for is from what already exists in law. Clause 23 will ask for consideration to be given of whether there has been a proper exercise of a function. That must logically, therefore, relate to the behaviour of an individual, must it not?

[Damian Hinds]

My right hon. and learned Friend anticipates my next point to some extent. In instances where an individual has operated in good faith in compliance with domestic and international law and all proper process, they would then not face the risk of liability under the 2007 Act for something they could not have foreseen. In effect, we are adding greater certainty and specificity to an existing defence—the reasonable defence contained within that Act—by detailing scenarios where the offence will not apply, whereas the current defence is untested and imprecise.

The amendment means that, where an individual is working properly on behalf of our intelligence and security services and armed forces with an international partner to protect national security, they do not personally risk criminal liability if their work is later found to have been capable of contributing to unlawful activity in a way they would not have intended. That risk should remain with the Government, the services and the armed forces at corporate level, and that is what this amendment seeks to ensure.

A number of colleagues have raised the question of disinformation. They are correct that information operations are now a firm feature in the set of devices available to hostile states. There is direct disinformation, where talking points are put out on those states, on foreign affairs or on our domestic politics and society, but there is also the terrible technique of indirect disinformation, which is not necessarily intended to make anybody believe a particular line or narrative, but is simply aimed at causing division and discord in our country, to undermine our democracy and the cohesion of our society.

This Bill deals with people who carry out disinformation for a foreign state, but I want to be clear that legislation on the material itself belongs in the Online Safety Bill. We are looking at how to amend that Bill to account for disinformation material where that disinformation amounts to foreign interference, so that it can be treated as illegal material.