National Security Bill

John Hayes Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Priti Patel]

At the end of the day, we are focused on individuals who are trying to do harm to our country. I will look specifically at that—obviously, I will—but intent is also based on the information and activity that can come together around some of the individuals. Right now, we are only referring to much of this on a case-by-case basis, but as we have learned with recent examples, some of which I might come on to, we can see the intent and the harm in the sequence of activity that has taken place around individuals.

[Sir John Hayes (South Holland and The Deepings) (Con)]

I am extremely grateful to the Home Secretary, who I know is trying to move to a peroration. On the issue of dynamism, intentions alter and threats change. The Bill creates the scope to take action against a changing terrorist landscape, but is there sufficient flexibility in the Bill to alter its provisions in accordance with those changing intentions and changing threats?

[Priti Patel]

My right hon. Friend makes an important point. Of course, that is the whole purpose of legislation. As I said in the first part of my remarks, we cannot remain static; we must have the agility to respond. Since February this year, with Russia’s incursion into Ukraine, techniques and tactics have changed. Yes, we are responding to them differently, but some legislative underpinning is absolutely required, as is having the flexibility and agility to respond. Hack and leak is only one example. There are so many other examples, as he will know from his time as Security Minister and from his time on the Intelligence and Security Committee. The landscape is shifting and, frankly, it is shifting fast.

We cannot wait for terrible atrocities to happen before we intervene. The Bill criminalises people who prepare to commit acts that constitute state threat offences and other harmful activity that constitutes a serious threat to life or public safety. They will face the prospect of life behind bars. When it comes to state threats, an aggravating factor will ensure that sentences for state-linked criminality recognise the seriousness of hostile activity conducted for or on behalf of foreign states. This applies to all offences not in the Bill where the foreign power condition is met.

In July 2021, the US Department of Justice announced that a New York court had unsealed an indictment against four people resident in Iran for their involvement in a plot to kidnap an unnamed Iranian-American journalist. The indictment also detailed four other individuals under surveillance by the network, including one based in the United Kingdom. Prosecutors said that one of the conspirators was an Iranian intelligence official, while the other three were assets of Iranian intelligence. Again, that speaks to the aggravating factors and the type of activity that takes place, as well as the cross-collaboration when it comes to dealing with some of those hostile state threats.

The people who engage in such nefarious behaviour are often highly skilled at keeping their activities hidden and we should never lose sight of that. Let us be under no illusion about the scale of the threat we face. In February last year, a Belgian court sentenced an accredited Iranian diplomat based in Vienna to 20 years in prison for his role in a plot to bomb a conference in Paris hosted by Iranian dissidents. The Belgian state security service stated:

“the plan for the attack was conceived in the name of Iran and under its leadership.”

Russian dissident Alexei Navalny was poisoned by Putin’s thugs and could easily have lost his life. In response, our Government enforced asset freezes and travel bans against 13 individuals and a Russian research centre.

It is vital, when creating a suite of new offences, to ensure that the police and the security and intelligence agencies have the powers effectively to investigate the threats this Bill seeks to address. I am bringing forward search and seizure powers to replace the existing investigative tool to counter complex state threats investigations. A new power of arrest for state threats activity, a new state threats detention scheme, and longer retention periods for biometric data will give the police further powers effectively to investigate these cases.

There will be some cases where it will not be possible to bring a prosecution. As is the case with counter-terrorism law, where similar challenges arise, we need a way of protecting our country. New state threat prevention and investigation measures will allow the Home Secretary to impose targeted restrictions, such as where an individual works, lives or studies, to prevent the most serious forms of harm. This is a tool of last resort. It will be used when intelligence confirms that highly damaging threat activity is planned or being undertaken, but prosecution is not realistic. These measures will be proportionate to the threat posed by an individual, and they will be subject to rigorous checks and balances, including by the courts. The Bill improves schedule 3 powers in the Counter-Terrorism and Border Security Act 2019.

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[Yvette Cooper]

The hon. Member is absolutely right. The work done by those across our intelligence and security agencies often goes unseen and unremarked on, and, as a result, it is often unappreciated, but both sides of the House are clear about the debt of gratitude that we owe to many of those who work so hard to keep us safe.

In these debates, people often end up pitting liberty and security against each other or arguing, for example, that action to defend security constrains our liberty, that historic freedoms should be abandoned in the interests of security and that, somehow, they are in conflict. The truth is that, as we all know, both liberty and security are vital in a democracy, and they depend on each other. We need to feel secure to have the freedom to get on with our daily lives, and security measures also need to take account of the importance of the very freedoms that it is their purpose to defend. Our intelligence and security agencies also depend on public trust and, rightly, need always to be located within a strong legal framework with strong oversight. Where strong powers are needed to defend our national security, they need to be matched by strong oversight, with checks and balances to ensure that powers are proportionate and necessary, and never abused.

[Sir John Hayes]

As ever on these matters, the right hon. Lady is making a compelling speech. Given what she has said about the apparent paradox between freedom and order, will she join me in condemning those who in breaching secrets and leaking information, claim to do so in the name of liberty but actually act in a way that is injurious to order and therefore to freedom?

[Yvette Cooper]

I say clearly that our national security needs to be taken seriously by everybody. It should not be lightly dismissed that without it we do not have strong freedoms and liberties. The people of Salisbury had a right to the freedom to be able to walk safely on their streets and not to find their lives put at risk by a dangerous chemical attack by members of a foreign intelligence service that ultimately took a British life; patients throughout the country have a right to know that their medical records are not being hacked or interfered with by a foreign state; and our businesses, scientists and researchers, on whom our future prosperity depends, have a right to feel safe from foreign attacks that undermine the resilience of our infrastructure or from the theft of trade secrets.

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[Yvette Cooper]

I would certainly be happy to have further discussions through the usual channels about the way in which the Bill needs to be scrutinised. In the early evidence stage of the scrutiny, particularly for a Bill like this, it is important for the Committee to be able to hear evidence on this issue, in order to make sure that we get it right.

[Sir John Hayes]

With all due regard to my hon. Friend the Member for Wycombe (Mr Baker), a much better approach would be exactly as the right hon. Lady describes—to have the proposal early in the Committee’s consideration and for the proper interface to operate between the two Front Benches. I know that she is richly experienced in these subjects, as is the Home Secretary, and I am sure that a proper dialogue could take place to deal with the matter that has been raised.

[Yvette Cooper]

As I have said, these debates will rightly take place through the usual channels to ensure that we have that scrutiny. I am also keen to ensure that the evidence session can take place in plenty of time.



Another issue that Members on both sides of the House have raised is the absence of reforms to the Official Secrets Act 1989, and on that point I am slightly less clear what the Government’s intention is. My understanding from what the Home Secretary has said is that she does not plan to bring forward measures in this Bill but that she is looking at the issue further. The Law Commission has raised important issues about the need to improve prosecutions in certain areas and to have public interest safeguards, both of which are immensely important, as I think the Home Secretary has recognised. Will she and the Security Minister therefore engage at an early stage in discussions on this issue with Members on both sides of the House?

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[Yvette Cooper]

The hon. Member makes an important point about other potential gaps. I would be keen to discuss with him further how that could be addressed.

There is a principle here, which is that sometimes important powers are not subject to the normal public scrutiny—inevitably, because of how they need to be used in order to keep us safe and to deal with hostile threats, be it from other foreign states or from terrorists. However, that veil of secrecy makes the need for independent scrutiny all the more important. Rightly, we have the Intelligence and Security Committee and other Committees, but also things like the investigatory powers commissioners. Specifically on the terrorism legislation, the role of the independent reviewer has been immensely valuable. I urge the Home Secretary and the Security Minister to look at widening the oversight provisions in the Bill. While there might be areas of disagreement between us, we will come to a conclusion and measures will pass through Parliament, but there will still be weaknesses in them and there will still be problems with the legislation.

[Sir John Hayes]

The right hon. Lady is making a good point about oversight and checks and balances. She mentioned the Investigatory Powers Act and the judicial commissioners. I was involved in taking that legislation through the House, as she knows. The independent reviewer’s scope is already sufficiently wide, is it not, to look at terrorism legislation per se? So I assume that she is talking about making sure that that scope is sufficient rather than establishing a different and parallel structure.

[Yvette Cooper]

There is a very strong case for having the same independent commissioner to cover espionage and terrorism. That is obviously a matter that the Home Secretary would need to consider, but clearly, especially with the STPIMs and the TPIMs, there are overlapping issues that it would make sense for the same framework and the same independent reviewer to cover. My understanding is that at the moment the independent reviewer covers only terrorism legislation and that the provisions of this Bill will not be within their scope. It would be very easy to amend the Bill—I hope it would receive cross-party support—to allow either the same independent reviewer or a parallel independent reviewer to look at espionage legislation. That would also allow for ongoing review of whatever changes we end up concluding are needed to the Official Secrets Act 1989. Again, there will be an important need for further review to make sure that we have the right measures to protect our security and support the public interest. We can cover our many other issues with the Bill in Committee. We look forward to those exchanges and to having further discussions directly with Ministers.

I am conscious that other Members with great expertise in this area want to contribute to the debate, so I will conclude simply by saying that at a time when across Europe we are all coping with the illegal invasion of Ukraine by Russia, and supporting Ukraine’s immense bravery in standing up and responding to this appalling Russian threat; at a time when we have seen hostile state activity not just from Russia but, as the director general of MI5 has said, from countries such as China and Iran; and at a time when we all know we need to stand up for our democracy, historic freedoms, liberties and democratic values, I hope that we will be able to come together to support our national security, and continue to defend our democracy and democratic values.

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[Sir John Hayes]

If I may be helpful while my hon. Friend is finding his notes, he makes a compelling case—a case that was made prior to this Bill by the Government and by those who recommended this legislation: the ISC, the Law Commission and others. The issue is how we construct this, how it is included in legislation and in the Government’s proposals, and at what stage we will know more about that. That was rehearsed earlier in the debate, but it is important that we have real scrutiny of that process.

[Bob Seely]

I am delighted that my right hon. Friend interrupted me just as I was fiddling around with my paperwork. There are two critical points that I will come to very shortly, looking at five potential options for the foreign lobbying and foreign influence element of the Bill, and at whether we go for a light touch, a moderate touch or a deep touch.

We know the situation with the Russians has changed dramatically, although it may change back in future years, but China is now, if anything, a more important case than Russia, because we know that the Chinese Communist party uses state, non-state and quasi-state actors in the same way that Putin’s Kremlin did. The one thing I see immediately on looking at the Bill—maybe the Minister can guide me here—is a lot of references to state actors. Is Huawei a state actor? We have had Ministers claim in this House that Huawei is “a private company”. In a communist, one-party state, a major company that is a front for Chinese technology is not a private company.

What are the Government going to do about the Oleg Deripaskas and the Abramoviches of this world? I know the world has moved on somewhat, but in theory, what are they going to do about rich players who are beholden to dictators in different countries? What are we going to do about the Saudis? They do an awful lot of influencing and influence operations in this country and a great deal of lobbying. They are our allies, but that is not a democracy. To what extent do countries such as Saudi Arabia need to be more transparent about the business they do here?

Both the Kremlin and the Chinese Communist party raise issues not only about politicians—who, for me, are not the most important aspect, and I am not just saying that because I am in Parliament—but about law firms, which are critically important. This is about the power of the finance houses and former civil servants who have expert experience of policy making. It is about the special advisers who work closely with senior Ministers and know how a Secretary of State’s mind operates and how they think.

Those things are, in many ways, frankly more valuable than how a Back-Bench MP or a member of an all-party parliamentary group is going to vote. We need a foreign influence element to the Bill, and my strong recommendation to the Minister is that we need something that is flexible and captures the idea that influence nowadays is not just peddled through people in this House. In many ways, many of the most important peddlers of influence are not Members of Parliament, but people in the civil service, or ex-civil servants, ex-military or ex-politicians—people in that sort of world.

If we are to have a foreign lobbying element, what should we look at? I recommend that we create laws to compel individuals and entities who lobby in the UK for hostile states and their proxies to record that on a national register. The Government accept that. The problem is that previous laws have limited lobbying to “consultant lobbyists”, which is not adequate to the task. We know that hostile states make use of non-lobbyist individuals and entities—those backed by or linked with a state, active in the spheres of academia, economics, culture and the media. Registrable lobbyists should be anyone who influences Government decisions or national policy, and that will therefore include PR consultants, research firms, reputation managers, law firms when they offer additional services, and banks. Law firms in particular have been at the corrosive heart of some of the most corrupting elements of how individual oligarchs have tended to use and manipulate power in the west.

I would also create laws to force foreign Governments to disclose when they spend money on political activity in the UK; that ban foreign Governments or their proxies from providing political, financial and other support during election periods; and that compel foreign Governments and their proxies to label and disclose material and campaigns undertaken in the UK, especially those online. I would make those laws enforceable by criminal penalty. The Government are approaching some of those positions, which is great, but it is the breadth that is important.

On the next element, there are three options. One is a weak regime that treats everyone the same, so the Saudis the same as a Russian oligarch, or Huawei, or the New Zealand tourist board—sorry to bring up that example again. Or the Government could say that they will have a two-tier system with a very light registration for the New Zealand tourist board or the Norwegian salmon producers association, but a much higher degree of form filling and detail giving for Chinese, Iranian and Russian organisations and the potential influencing that they are doing, especially with the United Front. Or do we just have a very deep set of requests for everybody, which would probably result in a lot of unnecessary form-filling? The Goldilocks solution for me is level two, with a light layer of registration for all organisations that are working on behalf of foreign states or their entities, but a much deeper level for named countries, individuals or institutions, including Confucius Institutes.

We should also have a level that understands the importance of making sure that we know what is going on in our universities. When we have PhD students here from China whose sole purpose is to steal as much intellectual property as possible, that is not a good thing. We should at least acknowledge that that is going on.

[Sir John Hayes]

On that very point, my hon. Friend might want to turn his attention to the Confucius Institutes that are active in several of our universities and may be doing precisely what he says. I will say no more than that, but I regard them—as I hope he does—with a considerable degree of suspicion.

[Bob Seely]

As ever, my right hon. Friend stays one step ahead of me. We know that the socialist paradise of Sweden has banned the Confucius Institutes, which is a potentially attractive route forward. As several hon. Members have said, transparency is critical.



Just to finish the point about a two-tier system, while we need a light regulatory touch for most foreign entities in this country, the critical element is when would the Government have listed China, for example, for a much deeper level of requirement about proxies and registering interests—state interests and Huawei interests as well? Would they have done it in 2012, before the visit of President Xi? Probably not. Would they have done it in 2016? Would they be under pressure not to use these laws? We need a Government willing to use these laws and willing not to have an entirely laissez-faire system—a Government who understand that, in this day and age, defending our institutions, our democracy and people in this country from covert malign influence is absolutely critical, and that we need to take an approach that is deep in some areas but also broad and that captures all those involved.

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[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

I apologise to the Home Secretary, who is not in her place, for missing the first 11 minutes of her opening speech.

As I think the Minister will have spotted, there is wide consensus across the House about many of the provisions in this Bill that is matched only by a level of frustration that the Bill has been an awful long time coming. We have been debating the risks of hybrid warfare, from Russia and from others, in this Chamber for at least four or five years. Therefore, having waited so long and having debated so much, I think we are within our rights to have expected a rather more substantial package from the Government.

In the spirit of consensus, which I see is running large in the House today, I hope that we will be able to add substantially to the provisions in the Bill. I do not want to criticise sins of commission today, but I do want to criticise three sins of omissions: in particular, the lack of security in defence for data; the lack of security for our democracy; and the lack of security for those defenders of freedom and those people such as brave journalists who are prepared to name and, where necessary, shame foreign influencers who are at large in our country.

Let me start with data, because it is impossible to talk about espionage in this day and age without talking about information and intelligence, and therefore about data and the channels that move that data between our country and foreign players—the companies that are on the cutting edge of the technology revolution. I am afraid I think there is a very real risk that this Bill will be out of date by the time our sovereign inks her signature on the parchment.

What is well understood by the Americans and the Chinese, and I have to say by our intelligence services, is that artificial intelligence—not simply intelligence, but artificial intelligence—will be the key to the future of warfare and conflict between states. That is why both China and the United States are seeking to be the world leaders in artificial intelligence by 2030. It is also why the head of MI6 warned last year about the risk of countries around the world falling into data traps, because there is very real alarm that the huge datasets necessary to train the algorithms that power artificial intelligence are being exfiltrated from around the world. These are the datasets that train the algorithms that will be absolutely critical in co-ordinating drone swarms, running global surveillance systems, and creating mass information—through the mountains of contents that it is possible to create with artificial intelligence—to fire at the west a fire hose of falsehood to confuse us or, still worse, to divide us.

[Sir John Hayes]

The right hon. Gentleman is making a compelling point, because there are two implications of what he is describing: the problem of scale and the problem of methodology. The scale of what he is describing will be hard for any single nation to cope with. On methodology, it is hard to conduct covert operations as we have historically against that backdrop.

[Liam Byrne]

The right hon. Member puts his finger on precisely the lesson that we should draw from allies such as the United States. Today, the United States has a battery of eight types of controls and measures that are regulating and controlling the export of—or, frankly, efforts to steal—technology and data to countries such as China.

The Bill says that it will be an offence to engage in

“conduct…that it is reasonably possible may…assist a foreign intelligence service”.

I am afraid that negligence must be part of that conduct. Our American allies now have: provisions for delisting Chinese firms, which they have applied to companies such as Sina Weibo; an investment prohibition list that has now hit 59 Chinese firms; a ban on share trading; export bans and restrictions that have added scores of Chinese entities to the unverified list, which therefore have tougher rules on receiving shipments from US exporters; an export ban; provisions for revocation of trading licences; data controls, which first President Trump and then President Biden ordered; and, of course, targeted sanctions. My question for the Minister is: where is the similar framework for the United Kingdom? We are now in grave jeopardy of a control gap emerging between the United Kingdom and our closest ally.

When I tabled parliamentary questions on those eight different measures to the Government asking where our similar framework was, I got a lot of waffle from the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Sutton and Cheam (Paul Scully). I then asked the Government what controls are in place on nine of the 1,100 key companies now controlled in some way, shape or form in the United States: those such as Huawei, ZTE, Hikvision, Hytera and Alibaba through to China Unicom—I will not go through them all. Despite our adding China to the UK arms embargo list earlier this year, the only one company that the Minister could name that is subject to UK controls was Huawei.

I am afraid that we are now at risk of a control gap, and we are still behaving as if we believe in free movement of weapons-grade intelligence. That is presumably why individuals such as Clive Woodley, funded by the UK university system and the Ministry of Defence, are still wandering around organising conferences on weapons in China. Given the poor job that the National Security Council did on co-ordinating complex operations such as the evacuation from Afghanistan, I am seriously concerned that the Government lack the capacity to co-ordinate the Treasury, the Department for Digital, Culture, Media and Sport, the Department for International Trade, the Department for Business, Energy and Industrial Strategy and the intelligence agencies in controlling what needs to be controlled. I would like to see a duty on Ministers to report to the House on companies of concern, particularly those operating from countries where we have arms embargoes, with clear measures to control them.

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[Stewart Hosie]

Will the Minister give way?

[Sir John Hayes]

Will the Minister give way?

[Damian Hinds]

Yes, and then I can deal with both questions at once.

[Damian Hinds]

I give way to my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes).

[Sir John Hayes]

I am grateful to the Minister. I hear what the right hon. Member for Dundee East (Stewart Hosie) says. It is a compelling case, although I do not agree with it. The Official Secrets Act 1989 deals with the unauthorised disclosure of sensitive information by civil servants; giving information to journalists; a WikiLeaks-type disclosure dressed up as being by a guardian of liberty or some such other nonsense. This Bill does not deal with that unless those people are working directly for a foreign power. They might not be working directly for a foreign power, but they might be aiding a foreign power or acting indirectly for such a foreign power, and surely that needs to be included in the Bill.

[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.

National Security Bill

John Hayes Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Tom Tugendhat]

What I am so pleased about with this Bill is that it introduces so many ideas that the right hon. Gentleman and I have discussed in private over many years when I was in a similar position to him—scrutinising a Government. The Bill introduces some of those ideas that, yes, he is right to say, seem to have been introduced quickly, but the reality, as he knows very well, is that they have been discussed slowly. Many aspects of the Bill not only date six or seven years into the past, but update aspects that date a lot further back. Sadly, some of our national security legislation is better placed to hunt those who would send secret notes on pigeons back to Germany than to hunt those sending secret messages through the internet. This is updating quite a lot of laws that date all the way back to the first world war. I am very glad that we are doing it, and I am very glad that the right hon. Gentleman’s scrutiny in the Bill Committee has been so rigorous and so onerous.

[Sir John Hayes (South Holland and The Deepings) (Con)]

My right hon. Friend is right that this is an important step. In particular, he is right about the foreign influence registration scheme, which has long been called for, including by the Intelligence and Security Committee, of which I am a member. He will also know that, because we have yet to discuss that in any detail, there may be confusion about the primary and secondary tiers—in other words, those things that are designated as being of more profound importance than these other things. Would it be helpful if he were to write to the ISC, setting out how he thinks they would work in practice, given that we understand that the secondary tier will be introduced by secondary legislation?

[Tom Tugendhat]

My right hon. Friend is right. I would be very happy to write to him. I can summarise it now by saying that the primary tier is that connected to political activity. Anybody from any foreign country who wishes to influence this House, this Parliament, any Members here, or indeed any political outcome, would be looking at the primary tier. That is the basic level, and it involves a registration on a website so that we can all know who has taken payment for what—which piper has been paid and by whom.

The enhanced registration is different and requires registration for a wider range of activities, but those depend on the specific foreign power and, indeed, the entity or operation within it. That is a different matter, and that will be down to the Secretary of State looking at what is reasonably necessary in order to protect the safety and interests of the United Kingdom—that is the enhanced tier, as we are calling it. That is the summary, but I will be happy to write to the ISC.

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[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.

National Security Bill

John Hayes Excerpts

Consideration of Lords message
Monday 26th June 2023 Commons Chamber

[Madam Deputy Speaker (Dame Rosie Winterton)]

We still have three more speakers, so I would urge brevity.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Brevity is my middle name, Madam Deputy Speaker, as I shall illustrate in this short, pithy but powerful address.

I have only three points to make. The first is that, as members of the ISC know and as the Security Minister knows, the threats to this country are dynamic. They change rapidly and the means of countering them must change accordingly. It is critically important therefore that we understand, as the shadow Minister said, that there are foreign powers—many of them state powers, though not exclusively so—who are determined to effect things in this House through contacts with political parties, with the institution itself and with politicians. Being aware of that, we need to counter it using all the necessary methods, including legislation.

The second point is that, in order to exercise the power to protect us, those missions to do so must act in a way that is secret.

Their work cannot be transparent. They need to protect their sources, their methods and, most of all, information. To legitimise that kind of power, which is by its nature extreme, it must be accountable and it must be scrutinised. A body that does so must, by definition, have a very particular kind of constitution, in that it has to have a means and method of doing so that is itself secret.