National Security Bill

Joanna Cherry Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Priti Patel]

I will answer the right hon. Gentleman’s question very specifically. He is right about the public interest defence, on which the Law Commission has recently opined. We are not bringing forward reform of the OSA 1989, mainly because we recognise that the issue is complicated, not straightforward. If it were straightforward, we would be able to deal with it in the form of a clause. However, there are various sensitivities. For example, in situations where there may have been wrongdoing or where we think there is a public interest in disclosure, it is about finding the right balance; a public interest defence is not always the safest or most appropriate way to bring that matter forward.

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.

[Joanna Cherry (Edinburgh South West) (SNP)]

I am grateful to the Secretary of State for taking a further intervention on this point. Three of our four Five Eyes partners—New Zealand, Australia and Canada—have some form of public interest defence. The example of those jurisdictions has shown that a public interest defence works and does not lead to a flood of unauthorised, damaging disclosures or an excessive risk to national security. I am quite sure that an amendment will be tabled at some point to introduce a public interest defence; the right hon. and learned Member for South Swindon (Sir Robert Buckland)—the former Lord Chancellor—is thinking about it. Will the Secretary of State give such an amendment serious consideration?

[Priti Patel]

Let me say for the assurance of all colleagues in the House: absolutely, we need to find the right balance. The hon. and learned Lady has touched on our Five Eyes partners, which have introduced many other aspects that I will mention later in my speech, but they are seeing unintended consequences. We want to work through much of the detail, and we will work with all colleagues in this ongoing process.

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[Yvette Cooper]

Yes, I strongly do, because some of the examples of such leaks that we have seen put agents’ lives at risk, put vital parts of our national security and intelligence infrastructure at risk and are highly irresponsible. We need safeguards to protect against that kind of damaging impact on our national security.

[Joanna Cherry]

Notwithstanding what the right hon. Lady just said, would she and her party support a narrowly and carefully drawn public interest defence, such as those that our Five Eyes allies New Zealand, Australia and Canada have, to protect civilians and journalists who make disclosures that are properly in the public interest?

[Yvette Cooper]

The hon. and learned Lady makes a really important point. In its consideration of these issues, the Law Commission made proposals on not only strengthening some of the measures in the Official Secrets Act 1989 but how to have proper safeguards to protect whistleblowers and the public interest. I recognise that there are complex issues in respect of how to draw up the legislation and shall make further points about that.

We have just spent the past four days celebrating our Queen’s historic platinum jubilee and celebrating our shared values and traditions, which are what we defend when we defend our national security. At a time when we have seen an illegal invasion of a fellow European democracy by Russia—an act that threatens and that has attacked and undermined the national security of a fellow European nation—there could be no greater reminder to us all of the need to be resilient and vigilant in the face of threats.

The threats to our national security, democratic values and way of life have inevitably evolved over the decades. The ending of the cold war in the 1990s and the major international terror attacks, particularly by Islamist extremists from al-Qaeda and then from ISIS, alongside growing domestic far-right terror threats, have meant that the national security focus—the top priority of our intelligence and security agencies—has for several decades been on terrorist threats to our way of life but, as the Government’s integrated review made clear, the threats from hostile states have not gone away and in recent years we have seen them grow and become more complex.

As the Government concluded in 2018, the attempt on the lives of Sergei Skripal and his daughter was, in the words of the former Prime Minister, the right hon. Member for Maidenhead (Mrs May),

“almost certainly…approved”

both by the GRU and

“at a senior level of the Russian state.”—[Official Report, 5 September 2018; Vol. 646, c. 168.]

We face different threats from other countries, too. MI5 recently warned publicly about the activities of an individual knowingly engaged in political interference activities on behalf of the United Front Work Department of the Chinese Communist party. The MI5 director general Ken McCallum has warned that

“the activity MI5 encounters day-by-day predominantly comes, in quite varying ways, from state or state-backed organisations in Russia, China and Iran.”

Alongside persistent hard power methods of attack, the advent of technology has also allowed soft power methods to flourish, with electoral interference, disinformation, propaganda, cyber operations and intellectual property theft used to foster instability and interfere in the strength and resilience of the state. The Home Secretary referred to the SolarWinds attack and the interference with major UK energy companies. As the Law Commission warned in its report, the Official Secrets Acts between 1911 and 1939 were enacted long before the digital age and include references to

“a sketch, plan, model, note”—

the pencil notings that are a far cry from the cyber and online data interventions that modern espionage might involve.

The words of the MI5 director general are perhaps startling, when he said:

“Today, it is not a criminal offence to be an undeclared foreign intelligence agent in the UK. Likewise, it is not currently illegal to be in a key position of influence in the UK and be secretly in the pay of a foreign state. That can’t be right. To tackle modern interference, we need modern powers.”

He is right, and we agree. That is why reforms and legislation are needed to address the new threats from hostile states. That is why many of the measures in the legislation are important, for example making it possible to take action against those who are operating in the pay of a foreign intelligence agency to do Britain harm; to make it possible to defend the trade secrets of British businesses, including taking action against those who may be paid by foreign intelligence agencies or a state to leak intellectual property or trade secrets that are then used to undermine our industry and our economy; to make it possible to have stronger action against incredibly damaging cyber attacks on our critical infrastructure; and to enable early intervention to prevent damaging attacks, not just to prosecute once the damage is done.

We have questions that we want to put, points that we want to probe and amendments that we will draft because we want to work constructively with the Government to get the legislation right. I shall make some of those points now and I look forward to further discussion with the Home Secretary and the security Minister during the passage of the Bill. The first gaping hole that we see is the promised foreign agents registration scheme that the Home Secretary has said she will bring forward. We had understood that this would be the central part and purpose of the Bill, but it is currently missing. I do recognise that drafting in those areas is complex, and we need to learn from what other countries have done, but that also makes it the more important to have proper scrutiny. I urge the Home Secretary to ensure that the scheme is not brought forward at the last minute so that we do not have time to give it proper consideration in Committee or to take evidence on it beforehand.

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[Stuart C. McDonald]

My hon. Friend makes an important point, which we will have to look at. There are other provisions in legislation that provide protection for those involved in the work of agencies, so we do not think that the case for this new carve-out has been made at all.

Part 2 will also need close scrutiny; we turn here to state threats prevention and investigation measures. I do not think that any of us here should ever feel comfortable about curtailing people’s liberties by ministerial fiat rather than as a punishment for a proven crime. In fairness, I think the Home Secretary recognised that in her speech. We have come to accept that such “prevention and investigation measures” are a necessary part of the fight against terrorism. Our position on TPIMs has been to cut their wings, improve oversight and limit their invasiveness, rather than to do away with them altogether. It may be that we end up with STPIMs as well, but we will probe the Minister closely on the case for requiring them at all.

Ministers always promise—the Home Secretary did today—that powers will not be used inappropriately and excessively. That is welcome, but they should not have the power to do things that are inappropriate or excessive in the first place, because those who follow them into office may take a different view of what is inappropriate or excessive. Restrictions have to be in the Bill rather than in ministerial undertakings.

Part 3 is also a mixed bag. We absolutely see the need for freezing and forfeiting damages that could be utilised for terrorism. There could also be an arguable case for powers to reduce damages in certain national security proceedings, but we will examine that closely. On the other hand, there is a real question over whether courts already have sufficient powers and whether there are sufficient safeguards and processes that prevent undeserving cases from winning damages in the first place, so we will again press the Minister on that.

Much less persuasive is the case for restricting legal aid in utterly unconnected proceedings on the grounds of a past conviction for terrorism. That was raised by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and I am very sympathetic to that while recognising that this is one of the few “England and Wales only” provisions.

As we heard, we need to scrutinise not just what is in the Bill, but what is not—or not yet—in it, and two issues are particularly important. As has been touched on, the Minister and the Home Secretary have set out that the foreign agent registration scheme will be amended. Various complaints have been made about that not being in the Bill as we debate it today.

I return to my experience during the passage of the Nationality and Borders Act 2022—a slightly more acrimonious piece of legislation. Having really important provisions about citizenship and age tests being introduced at pretty short notice in Committee meant that we did not have the chance to ask witnesses about them or to get briefings about them from important organisations.

Something as important as the foreign agent registration scheme needs more than a couple of days before a Committee sitting if we are going to give it proper scrutiny. I am very sympathetic to the idea of allowing us some time on the Floor of the House to debate the details. In principle, the idea is very welcome and the provision is required. However, as we all have acknowledged so far, there will be very tricky lines to draw in the sand between those who should be required to register and those who do not. We must also guard against having a massive Henry VIII clause that simply leaves it to the Government to set out the scheme at a later date. That would not be acceptable either.

Also missing from the Bill—this is apparently not going to be amended by the Government—are updates to the Official Secrets Act 1989 or any concept of a public interest defence to charges under it. As we heard, that Act is almost as out of date as the other laws that we are updating through the Bill. The Law Commission was clear that a public interest defence was required to ensure that the Government were not able to abuse legislation as a

“cloak to mask serious wrongdoing”.

It suggested a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under that Act. We support those ideas on the type of provisions that look under the bonnet, as I referred to earlier.

[Joanna Cherry]

As usual, my hon. Friend is giving a considered speech and I support everything that he has said so far. Notwithstanding the Government’s reluctance to use the Bill as a vehicle to introduce a public interest defence, it is likely that a cross-party amendment would seek to do that at some point. Will he confirm that the Scottish National party—our party—would support that?

[Stuart C. McDonald]

Yes, absolutely. The versions of such an amendment that I have seen look very promising and we would like to give our support to that if we can.

In conclusion, we need a Bill, and we certainly support this Bill on Second Reading. However, there is a lot for us to get our teeth into, both in terms of what is in it and what is not. We look forward to engaging critically but constructively on all these issues as the Bill progresses.

National Security Bill

Joanna Cherry Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.

I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.

We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.

The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.

Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.

We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by the right hon. Member for North Durham (Mr Jones), which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.

[Tom Tugendhat]

This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.