National Security Bill (Fourth sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

Let me take clauses 7 and 8 and Government amendments 5, 6, 7 and 8 together. As the Minister has outlined, clause 7 defines a prohibited place for the purposes of clauses 4 to 8. The definition includes Crown land and vehicles used for defence purposes; places used for the invention, development, production, operation, storage or disposal of weapons; and land, buildings or vehicles designated by regulations made under clause 8.

Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. This will ensure that additional sites that are vulnerable to state threat activity can be designated when it is considered necessary. The Committee will note that, historically, the list of prohibited places has had a strong, if not total, military focus.

We just need to read the legislation to be struck by how dated it is. The Official Secrets Act 1911 defined a prohibited place as:

“any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty”

and so on. While reflective of the contemporary climate and the threats posed to the UK, this list has long been out of date. We therefore welcome this expansive update for defining what a prohibited place is, as well as giving the Government the ability to adapt the list where there is a reasonable case to do so. In the light of that, we recognise that Government amendments 5, 6, 7 and 8 complement the clause in that aim.

That said, I did probe the Law Commission during last Thursday’s evidence session on this point. It is important that this legislation is laid in such a way that it is not used by Government or future Governments to infringe on other democratic freedoms. During the consultation period of the Law Commission’s report on the Official Secrets Act, a number of stakeholders expressed concern about giving the Home Secretary such powers to designate a new site as a prohibited place.

The Trinity Mirror raised concern that an unchecked power to create designated sites based on national security may create a new criminal offence without parliamentary debate and could potentially stifle legitimate investigations in the public interest. WhistleblowersUK stated that the list should not end up being widened to include council officers or schools, for example. It would be incredibly worrying if a Home Secretary interpreted this power to allow himself or herself to mark places that served a purpose in the execution of an unpopular Government policy, for example, as a prohibited place. I outlined these concerns to Dr Nicholas Hoggard of the Law Commission, who provided some reassurance. He said,

“What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where

there is actually a real risk of harm arising from hostile state activity. On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

I look to the Minister for the same political assurances: that such powers would not be used should the Government find that to declare somewhere a prohibited site would serve a purpose in the execution of an unpopular Government policy, for example. Having gone through the prohibited places National Security Bill factsheet on the Government website, I have already asked the Minister what information should be in the public domain to confirm that somewhere is a prohibited site.

I completely accept that somewhere might be so secure that extensive signage and its inclusion on any such list might not be appropriate. However, in the event of our Pokémon GO example, it is about being able to check without needing to travel to a prohibited place to observe the signage to find out, which might itself bring someone in scope of earlier offences. I want to ensure that the status of such a site, the restrictions and the consequences of not adhering to those restrictions are appropriately and clearly communicated to the public.

Before closing, I want to bring the Minister’s attention to clause 7, where we have sovereign based areas overseas for UK defence purposes. He has made the undertaking to consider military powers within the earlier clauses on police powers. It is my understanding that the Ministry of Defence police would not provide that service to these sites deemed to be prohibited places within clause 7. Once again, he might need to write to us to work through some of that detail further.

[Mr Kevan Jones (North Durham) (Lab)]

Mr Gray, we know that it is officially summer when you remove your jacket.

[The Chair]

Order. In 25 years in this place, I have never once removed my jacket until now. I am embarrassed!

[Mr Jones]

Possibly this historic day shows the effects of global warming.

I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of

“metals, oil or minerals for use for UK defence purposes”.

I would like to define why it has been outlined in that way in the Bill.

I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.

The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?

Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?

I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?

I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.

I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.

--- Later in debate ---

[Stephen McPartland]

I appreciate that. We have heard this morning and in previous sittings about that tension in respect of the Government interest and defence. There is case law that defines it. The purpose of the Bill is to provide the intelligence services with the tools they need to keep the country safe. They feel that they need these tools to do that. There are safeguards. The idea behind the number of factors is that there are a variety of checks on the Secretary of State, so they would have to demonstrate all the way through that they have considered that multitude of factors and that it was necessary for the defence of the country.

On the point made by the right hon. Member for North Durham, I cannot believe I am going to say this but I cannot tell him what I have been briefed, for national security reasons. The reality is that in these clauses we have moved away from designating places to categories. One of the categories is unavowed sites. That means that some of the sites that he suggested would be covered by the category.

[Mr Jones]

As long as they are covered, that is fine. I do not want the Minister to start referring to any of them.

[Stephen McPartland]

Another query raised was about oil and metal, which I understand are already in the existing provision for use in defence. That is why we refer to those areas. Finally, we are not designating military bases abroad, other than sovereign bordered areas, purely because of difficulties with jurisdiction and making that work.

Amendment 5 agreed to.

Amendments made: 6, in clause 7, page 7, line 4, leave out

“(including a part of a building)”.

This amendment is consequential on Amendment 7.

Amendment 7, in clause 7, page 7, line 24, at end insert—

“‘building’ includes any part of a building;”.

See Amendment 5.

Amendment 8, in clause 7, page 7, line 37, at end insert—

“‘GCHQ’ has the meaning given by section 3(3) of the Intelligence Services Act 1994;”—(Stephen McPartland.)

See Amendment 5.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.

Clause 9

Power to designate a cordoned area to secure defence aircraft

Question proposed, That the clause stand part of the Bill.