National Security Bill (Second sitting)

Jess Phillips Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Damian Hinds]

Q I was not trying to start an argument or even a discussion or analysis of end-to-end encryption. I was just asking, relatively speaking, how much do we know? There is a hypothesis that the reason why there was apparently less material in recent American elections on Facebook than in 2016 is that large parts of it have moved to other channels where we just cannot see it. We just do not know what is there.

Poppy Wood: Let me give you a good example on Russia Today. We do a lot of work and analysis around Russia and Ukraine. Obviously, Russia Today was taken down from most national broadcast networks. It has been resurrected multiple times on social media. This week, we saw it resurrected with another name, like “Discovery Dig” or something, on YouTube, where lots of the comments, imagery and language were directing people to Telegram channels where they are actively mobilising.

What we see in the active mobilisation on Telegram channels is the outing of national security agents, the putting up of email addresses of politicians and saying, “Target them and say they are on the wrong side of the debate,” or, “Write to this national newspaper.” In all three of those examples, it is predominantly in the UK. They are telling them it is all fabricated. They are absolutely weaponising those private spaces. As you say, it is quite hard to get into them—but actually, it is not that hard. They are pretty open channels, with thousands and millions of engagements and followers. That is the scarier bit. They are private, but you are getting tens of millions of people and engagements on them. I am not sure that is the true definition of private, but it is certainly in an encrypted space.

[Jess Phillips (Birmingham, Yardley) (Lab)]

Q I want to touch on the whistleblower issue you raised. There have been some concerns that the Bill might not sufficiently target those with malicious intent. Is there a risk that it potentially criminalises whistleblowers?

Poppy Wood: The role of whistleblowers in society is really important. I know the Government understand that. There are some good recommendations from the ISC about whistleblowers that I do not think have been adopted in this version of the Bill. That is about at least giving some clarity to where the thresholds lie, and giving a disclosure offence and a public interest defence to whistleblowers so they can say, “These are the reasons why.” My understanding is that at the moment it sits with juries and it is on a case-by-case basis. I would certainly commend to you the recommendations from the ISC.

I would also say—this was a recommendation from the Law Commission and also, I think, from the ISC—that lots of people have to blow the whistle because they feel that they do not have anywhere else to go. There could be formal procedures—an independent person or body or office to go to when you are in intelligence agencies, or government in general or anywhere. One of the reasons why Frances Haugen came forward—she has been public about this—is that she did not really know where else to go. There were no placards saying, “Call the Information Commissioner in the UK if you have concerns about data.” People do not know where to go.

Getting touchpoints earlier down the chain so that people do not respond in desperation in the way we have seen in the past would be a good recommendation to take forward. Whistleblowers play an important part in our society and in societies all round the world. Those tests on a public interest defence would give some clarity, which would be really welcome. Building a system around them—I know the US intelligence services do that; they have a kind of whistleblower programme within the CIA and the Department of Defence that allows people to go to someone, somewhere, earlier on, to raise concerns—is the sort of thing you might be looking at. I think a whistleblower programme is an ISC recommendation, but it is certainly a Law Commission recommendation.

[Sally-Ann Hart]

Q On malign activity, is there a risk that through clauses 13 and 14 on foreign interference, the Bill could affect free speech, including political speech and journalism? If you think it could, what additional safeguards can be put in place to ensure that only malign activity is captured?

Poppy Wood: I have certainly read and heard concerns about journalism, about the “foreign power” test on civil society and about having Government money being quite a blunt measure for whether or not you might fall foul of these offences. On journalism, I think that is why you should never try to define disinformation: because those kinds of shape-shifting forms are very hard to pin down, particularly with questions like “What is journalism?”, “What is a mistruth?”, “What is a mis-speak?” and so on. We need to be careful about that.

On your specific question, I refer you to Article 19 and others who have really thought through the impact on journalism and free speech. I am sure it would be an unintended consequence but, again, we are seeing Russia using its co-ordinated armies on Telegram and other channels to target Ukrainian journalists. They are saying, “Complain to the platforms that the journalist is not who they say they are or is saying something false, so they are breaking the terms of service. Bombard the platforms so that that journalist gets taken down and cannot post live from Ukraine for a handful of days.”

That is just another example of how these systems are weaponised. This is where you can go much further on systems through the Online Safety Bill and the National Security Bill without worrying too much about speech. But I refer the Committee to other experts, such as Article 19, that have looked really deeply at the journalism issue. I think Index on Censorship may have done some work as well.

--- Later in debate ---

[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.

[Jess Phillips]

Q That is absolutely fine. I can speak to you about part 3 of the Bill and the legal aid regime if you want. What is your view on the legal aid regime—the absence of legal aid—and how it is taken in the Bill? Specifically, I am interested in the offences that now come into that, with regard to accessing legal aid in the future.

Dan Dolan: Part 3 of the Bill—clauses 57 to 61—is in some ways the other side of the coin to clause 23. Clause 23 significantly hampers criminal accountability for ministerial or official involvement in crimes overseas, but there is also a very important civil avenue by which we might get accountability were the UK to get mixed up in torture or unlawful killing.

The Britons who were detained in Guantanamo Bay unlawfully without charge for many years and Abdel Hakim Belhaj, to whom the Government apologised, got accountability for the UK’s involvement in their appalling abuse through civil cases. They fought very hard, multi-year legal battles in the civil courts to win recognition from the Government that they had been involved in their mistreatment. Clauses 57 to 60 effectively introduce a range of so-called national security factors that would allow the Government to request a reduction of damages, potentially to nil, if those factors are present.

Say you are Mr Belhaj, who sued the Government and ultimately exposed their involvement in his torture, a national security factor that could have been applied in his case, were it in the form in the Bill, is that the UK, when it undertook the action that enabled his abuse, was acting to avert a real risk of harm. That obviously sounds convincing, but it is difficult to imagine an instance where the intelligence agencies would say they were not acting to avert a risk of harm—that is their core purpose.

The Bill also has national security factors that include the involvement of a third party. Say the UK Government passed on intelligence that led to someone’s torture by Colonel Gaddafi’s Libya, historically. Colonel Gaddafi’s Libya is a third party and its involvement would mean that UK did not need to pay damages on that front. The action happening overseas is another national security factor. If there were any wrongdoing by the UK intelligence agencies that led to torture or abuse overseas, the person would not be able to seek damages because of that factor. Effectively, what we are seeing in clauses 57 to 60 is a really sweeping effort on the part of the Government to get out of paying any damages to anyone who suffers due to Government wrongdoing overseas.

Clause 61 is really interesting, because it effectively relates to all civil cases. It allows for the freezing of damages in all civil cases, not just cases in which the Government are accused of wrongdoing. We just have not seen any basis that there is an issue with global terrorist groups receiving financing from damages in personal injury or medical negligence cases. It seems an incredibly, sweepingly broad curtailment of one’s right to receive damages—one that likely duplicates existing provisions for asset freezing and terrorist financing.

[Jess Phillips]

Q It worries me because there are lots of civil remedies in cases of abuse and violence. We made the law protect people who were victims of that so that they were able to access legal aid in a regime where most people cannot access legal aid any more. Victims of domestic abuse, for example, have an exemption. Is your reading of the Bill that you would not be able to get a non-molestation order, for example, which is a civil remedy where you seek legal aid through your exemption?

Dan Dolan: I would say that our evidence to the Committee covers clauses 57 to 60 and does not look in detail at the legal aid provisions, but my understanding of those provisions from the Independent Reviewer of Terrorism Legislation’s notes on those is that these are extremely broad provisions, and I would note that—

[Jess Phillips]

They would not be able to access legal aid.

Dan Dolan: There are a number of people every year—teenagers—who receive non-custodial sentences under terrorism legislation. That might be someone who shares something online at the age of 16, and my understanding is that the Bill would have an incredibly sweeping impact on their ability to receive those kinds of orders, and, equally, on their rights to access the civil courts for the rest of their lives, which is a fairly dramatic constitutional action.

[Jess Phillips]

It does not stop them accessing the civil courts. To be fair, it stops them accessing legal aid to the civil courts.

Dan Dolan: Which, as you will be aware, may be, at times, the same thing.

[Jess Phillips]

Just on a point of fact, it stops them from accessing legal aid.