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.