National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when

“access to the information, document or other article is restricted in any way”,

as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—

that way being entirely unspecified.

It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.

This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.

[Lord Anderson of Ipswich (CB)]

My Lords, I apologise for not being present at Second Reading. I cannot even claim, like the noble Lord, Lord Purvis of Tweed, that I was broadcasting the benefits of line-by-line scrutiny to a foreign power. I was performing a long-arranged judicial function in the Channel Islands.

I am well disposed in principle to Clause 1, and I entirely understand why the concept of protected information is not limited to “secret” or “top secret”, as the JCHR recommended. However, in the interests of obtaining a little more clarity, perhaps I might press the Minister on this point. Paragraph 63 of the Explanatory Notes states:

“Protected information includes, but is not limited to, classified material.”


Three examples are given. One is about information on the identity of police officers working with security and intelligence services. One is about information on intelligence officers operating in a foreign state. I suspect that they do not get much more classified than that. One is classified information on a defence system.

Bearing in mind that those examples appear to relate to classified information, I would be grateful if the Minister could explain, first, what circumstances he can envisage in which it should be an offence to obtain or disclose information that is not classified, or that could not reasonably be expected to be classified, applying Clause 1(2)(b). Secondly, how is one supposed to know that non-classified information is protected, given that the only controlling factor, other than the purpose of protecting the safety or interests of the United Kingdom—which, as the Committee has just heard, is very broadly framed—is that access should be restricted in some way? On one view, “restricted” could apply to anything, however innocent, that is not actually published. I assume that such a broad meaning is not intended, but could the Minister give us more of a clue as to where the line is drawn?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.

His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have

“damaging consequences if lost, stolen or published in the media”

but is

“not subject to a heightened threat profile.”

The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.

As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.

Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

I thank my noble friend for that correction—yes, it was Ponting, not Westland. I apologise; I had the wrong incident in my mind.

My fourth point is about the life sentence contained in subsection (3) of the proposed new clause. I simply do not like tautologies such as “manifestly unjust” in criminal sentencing provisions. In my view, if there is to be a provision of this kind—we have been told that it has been drafted very carefully—it should not contain tautologous phrases like that. “Unjust” will do very nicely, as far as I am concerned.

My fifth point is about the authority for such a prosecution. The noble Lord, Lord Bethell, referred to the involvement, presumably, of the Director of Public Prosecutions in authorising such a prosecution. However, as drafted, this proposed new clause would permit a private prosecution, which could be stopped by the Director of Public Prosecutions only in certain circumstances. Private prosecutions—often justifiably—are becoming more fashionable and frequent, particularly in fraud cases which the authorities are not able to undertake for reasons of scale and cost. Those are perfectly defensible private prosecutions, as results in the courts have shown. However, the use of private prosecutions for oblique motives in this context seems to be a very realistic possibility. I therefore urge that if we are to have a revised treason offence, it should be prosecutable only with the authority of the Attorney-General.

Finally, the House should pay very close attention—I would say this, as a former Independent Reviewer of Terrorism Legislation—to the views of Jonathan Hall KC, who has considered this matter in detail and with whom I agree. I also simply pose a rhetorical question: who seriously thinks that ISIS would be discouraged in any way whatsoever by the introduction of this clause? The Government are right in the decision they have taken, and I hope that they will stick to their view.

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.

Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that

“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]

No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.

If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.

This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.

I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.

As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—

“is a specific crime against society and one that deserves punishment.”

I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it

“conducive to the public good”.

Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.

This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.

My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.

[Lord Purvis of Tweed (LD)]

My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.

From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.

I welcome proposed new subsection (2)(e), which references acts that

“prejudice the security and defence of the United Kingdom”.

This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.

I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.

I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

My Lords, I listened with great interest to the argument made by the noble Lord, Lord Purvis of Tweed. I wonder whether I could ask the Minister, when he replies, to clarify the way in which the liabilities and immunities under this clause might impact, separately, the members of the intelligence services and the Armed Forces on the one hand, and, on the other hand, covert human intelligence sources, sometimes known as “agents” of the intelligence services, whose activities are authorised, I believe, under separate legislation. It does seem to me that it is very important that we should understand those two separate categories of action, and the way in which the proposed legislation would impact on those, because we are talking there about different legal regimes—although I speak as a lawyer and therefore I am willing to be corrected.

[Lord Anderson of Ipswich (CB)]

My Lords, that sounds right to me. Part 2 of the Serious Crime Act 2007 abolished the common-law offence of incitement and substituted three specific offences of encouraging and assisting serious crime. Schedule 4 expands the reach of Part 2 to the encouragement and assistance of crimes which are committed, or intended to be committed, abroad. Its provisions have been described by the Court of Appeal as “tortuous”. Professor David Ormerod, the former Law Commissioner, has written of its “incoherence” and “excessive breadth of liability”. The noble and learned Lord, Lord Judge, probably has a full and comprehensive understanding of it, but few lawyers and judges do, and even fewer can explain it to juries. It has, accordingly, rarely been used.

Intelligence officials—from what they have told the noble Lord, Lord Carlile, and me—share in the general bafflement. They cite the risk that they will be prosecuted for acts which are judged, in retrospect, to have been capable of encouraging or assisting the commission of an offence by a foreign intelligence partner. They take only limited comfort from the defence of acting reasonably in Section 50, and from the public interest test applied by prosecutors. The uncertainty, they say, prompts them to act with caution so significant as to have an operational impact.

Clause 28 proposes to address the situation by granting immunity from prosecution, in transnational cases, to those who are behaving in a way that is necessary to

“the proper exercise of any function”

of MI5, MI6 or GCHQ. No clue is given in the Bill as to how this test is to be applied. Compliance with the principles relating to the passing and receipt of intelligence relating to detainees, to which reference has just been made, would doubtless provide the answer in many cases but, as has also been said, there will be others that fall outside their scope.

The same broad immunity would be granted to members of the Armed Forces, not only for activities in support of the intelligence agencies but for any activities which constitute a “proper exercise” of the functions of the Armed Forces—whatever that means. No one has so far explained to me why such a broad immunity for the Armed Forces is necessary, even in circumstances with no intelligence connection. I hope the Minister will be in a position to do so.

I understand that the Intelligence and Security Committee of Parliament has been invited to scrutinise the justification for the claimed special treatment. I expect that it will have been shown operational examples that the noble Lord, Lord Carlile, and I, during our relatively short visit, were not. I hope that, before the Bill advances further, the committee will tell us what, if anything, it has concluded and whether those conclusions are confined to the agencies or whether they extend to the Armed Forces as well. For my part, I have general sympathy with the concerns expressed to me by agency lawyers—who are, in my experience, highly conscientious people—but, like the noble Lord, Lord Purvis, I would feel happier if I knew that an independent person or body, such as the Intelligence and Security Committee or the Independent Reviewer of Terrorism Legislation, had examined the secret materials and pronounced confidently on whether the concerns expressed to us are justified across the full range of circumstances in which they are being advanced.

However, let us assume, at least for the purposes of this debate, that there is a real problem of unquantifiable legal risk translating into excessive caution and reduced operational efficiency. Is the solution to place the agencies and the Armed Forces above the law? The question surely needs only to be asked for the answer to be apparent. We admire our intelligence and military personnel, with very good reason, but, be they never so high, the law in a democracy must always be above them. Modern intelligence co-operation means dealing with a wide range of international partners, some of them less scrupulous than others. Let there be no doubt that the crimes that some of them are capable of committing include some of the most serious of all: torture and unlawful killing. To remove all legal accountability for assisting and encouraging such acts, in particular by the sharing of intelligence, would send an unfortunate message to any person who might be tempted to cross the line. It would also send an appalling signal to the rest of the world.

Fortunately, two off-the-shelf solutions are available, each of them more palatable than Clause 28. The first is my Amendment 64, supported by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Judge. This would add activities caught by Part 2 to the scheme established by Section 7 of the Intelligence Services Act 1994—sometimes known as the “James Bond clause”, which the noble Lord, Lord Purvis, described, although it is certainly no simple immunity. Subject to further study of what he said, I do not think it does the trick without our amendment. Section 7 provides that those operating abroad, and in limited circumstances within the United Kingdom, are not liable for what would otherwise be crimes under UK law, but only if the commission of such crimes falls within the scope of an authorisation issued by the Secretary of State on tightly defined statutory grounds. Those authorisations, and the agencies’ compliance with them, are carefully scrutinised by the senior judges of the Investigatory Powers Commissioner’s Office—the successors of the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood—with the help of their skilled investigative teams. IPCO publishes its conclusions in its annual report, which demonstrates its exacting approach. The Investigatory Powers Commissioner, Sir Brian Leveson, would no doubt notify the Director of Public Prosecutions were it to find any illegality worthy of further investigation.

In this way, the requirements of the rule of law are maintained, and with three other advantages. First, and of some importance, IPCO scrutiny makes it more likely that any wrongdoing will actually come to light. Secondly, the agencies would not be exposed to police or prosecutorial investigations, unless, of course, they go beyond the scope of their authorisations. Thirdly, for any act within the scope of the authorisation the agencies have political cover from the Secretary of State, who would be unable to hang them out to dry. There would be some value in each of those matters, I would have thought, for the agencies themselves.

Like the existing Section 7, my solution would also apply to the Armed Forces to the extent that their actions are necessary for the proper discharge of a function of the security and intelligence agencies. Perhaps that limited application is all that the Armed Forces actually require, and I await the Minister’s comments on that.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.

The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.

As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for making that clear. It will have an impact on the way we address this whole group, because it is a very extensive group and many different groups from different sections of society have contacted us all, I suspect, and raised their concerns. I have been contacted by groups from business, the legal profession, universities and political parties. Some 400 NGOs have written to me, as I am sure they have to other noble Lords.

My Amendment 88, also in the name of the noble Lord, Lord Wallace of Saltaire, would ensure that guidance is provided on the foreign influence registration scheme. Other noble Lords have gone into more specific concerns and explorations of what particular definitions might mean.

I thought it might be most helpful in opening this group, in a sense, to raise two particularly powerful concerns that have been raised with me. I want to cite two groups that have contacted me. The first is the company AstraZeneca, which sent around an email that I thought it worth citing to show this company’s concerns, which illustrate other, wider concerns. It said:

“Clause 70, as drafted would, we believe, impose a requirement for persons in our overseas operations to register each and every dealing with not just Members of the UK Government … but also in Government Agencies such as the Medicines and Healthcare Products Regulatory Agency, The National Institute for Clinical Excellence, The Environment Agency and others where we have regular contact”


on medical issues. AstraZeneca is asking a very profound question about how far these requirements will go and how much impact they will have on its day-to-day business. The email goes much further, but that is the gist of the concern raised.

The other group that emailed me is the Law Society. Of course, all these groups, including the Opposition, support the broad aims of the registration scheme but are concerned about the practical impact and whether it will have a cooling effect on their ability to conduct their existing business. The Law Society email says:

“The Law Society supports the Government’s ambition to protect national security and ensure public safety. However, we are concerned that the proposals in this Bill could have serious implications for access to justice … Law Society members have shared significant concerns with us about the potential impacts of FIRS more generally. These include concerns … that the scheme risks damaging the UK’s largest exporting industry (financial and professional services) and its reputation as one of the world’s most attractive jurisdictions for cross-border business and trade and destinations for foreign investment.”


I have given just two examples, but there are many others. This whole scheme has raised a lot of questions in other sectors; we have heard about political parties and universities. I look forward to this being a wide-ranging debate and the noble Lord giving as full an answer as he can in summing up, but I am grateful for his confirmation that the policy will be available before Report so that, if we choose to, we will have ample time to take matters further.

[Lord Anderson of Ipswich (CB)]

My Lords, while I very much welcome the fact that this policy is under review, I hope your Lordships will agree, in view of the great interest that has been expressed in this subject outside this place, that we take the opportunity to express, at least in summary, the very grave concerns that some of us have about this part of the Bill.

In that spirit, I shall speak briefly to the five stand part notices in my name, signed also by my noble friend Lord Carlile, the noble Lord, Lord Wallace, and the noble Baroness, Lady Hayter. They would leave intact the enhanced tier, which I believe to be of real value for our national security, but if carried they would remove Clauses 66 to 70, the so-called primary tier of FIRS.

--- Later in debate ---

We have heard the concerns raised about the burdens for business that FIRS may create. The UK is and, we believe, will remain one of the best places in the world to do business. It is important to be clear that this scheme is not about obstructing or stifling the legitimate influence activities of businesses. It is there to encourage openness and transparency where activities are undertaken to influence the UK political system. We have deliberately designed the scheme to minimise the compliance burden for those falling within the scope of the requirements.

[Lord Anderson of Ipswich (CB)]

I am very grateful to the Minister. He has just mentioned for the second time the compliance burden. Earlier on, he said very reassuringly that all that would be required to register was the completion of a form. But does the Minister understand that one reason why so many people are so anxious about these provisions is that it is not simply a question of filling in a form? In addition, once you have done that, there is the ongoing and, apparently, permanent obligation to comply with any information notices, which can be given at any time, requiring information of any sort to be provided to the Government. This is against the background of an absence of statutory guarantees regarding confidential information, except for lawyers and journalists, and not even—I think I am right in saying—any indication in the Bill as to whether this register will be public. The Minister has spoken a great deal about transparency.

How is that consistent with a United Kingdom that welcomes foreign engagement? Can the Minister understand how reluctant responsible directors and trustees will be to advise engagement with United Kingdom Government authorities against the background of those potentially very onerous provisions, which are liable to cause administrative problems and render it impossible for them to keep private what is always intended to be private?

[Lord Sharpe of Epsom (Con)]

I reassure the noble Lord that the Minister absolutely understands exactly where he is coming from. I will come on to the confidentiality aspects of the question he just asked in a second.

The process will require information about those party to an arrangement, as well as a description of the arrangements and activities to be undertaken. We would not expect a detailed account of every activity to be undertaken either as part of an arrangement or by a foreign principal, but the full process will be set out in regulations, which will be laid before Parliament.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Bellamy (Con)]

I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.

We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.

[Lord Anderson of Ipswich (CB)]

The Minister rightly emphasises the very high degree of discretion that is given to judges under Clause 83. The core of it is Clause 83(5), which allows a judge to take a view on whether it is “appropriate” for the amount of damages to be reduced. I wonder what the Minister thinks of the point that to give judges such a wide discretion is perhaps to give them a poisoned chalice. Judges did not, so far as I know, ask for this power. Does the Minister agree that they could be strongly criticised were they to fail to exercise the power to reduce damages, even in cases where it would be consistent with normal legal principles, including the principle of fairness, not to reduce them?

[Lord Bellamy (Con)]

The question asked by the noble Lord, Lord Anderson, highlights the tension I referred to a moment ago. It is very difficult to say on the one hand, as is being said, that the courts have this power already and that they are perfectly capable of exercising it, whether under the 1945 Act or ex turpi causa, et cetera, and on the other hand to say that it puts them in a difficult position and that they will be criticised if they do not exercise it. I think I can say this: the overall intention of this legislation is not to alter or downgrade a principle of law that is already inherent in the common law and in our various jurisdictions; the purpose is to spell out that principle in this legislation so that no one has any doubt that it applies in terrorist cases. That is the main purpose of this clause. We are, to an extent, simply reflecting where we are, but clarifying where we are.

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[Lord Anderson of Ipswich (CB)]

My Lords, I have very little to add to the powerful speeches the Committee has already heard, but, as a supplement to what the noble Lord, Lord Pannick, has just said, I will remind the Minister of two other facts.

First, terrorist offences are by no means all at the top end of seriousness. Schedule A1 to the Sentencing Code includes offences such as

“inviting … support for a proscribed organisation”

which may no longer be concerned with violence, as a number are not, and

“failure to disclose professional belief or suspicion about”

the commission of terrorist offences by others. Those are offences on which the clauses bite.

Secondly, even for those offences which are serious enough to merit a period of imprisonment, recidivism rates for released prisoners are—I think in most developed countries, and certainly in this one—very much lower than the recidivism rates for ordinary crime. Professor Andrew Silke calculated in 2020 that the recidivism rate was around 3% for those who had committed terrorist offences and been released between 2013 and 2019.

I hope that the question the Minister will address is why that particular category of offence merits the removal of a right enjoyed by everybody else, including people convicted of murder, rape and the other most serious crimes that our law knows.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, there is one simple principle that everybody has referred to in the debate: access to justice. I will be brief.

If the principle still stands that cases that are still in scope of legal aid with sufficient merit ought not to be restricted by lack of means to bring them—that principle underlies the availability of legal aid—it should not be undermined by the removal of legal aid from cases that have merit and ought to be brought. What is particularly invidious about these clauses is that the restrictions on the grant of legal aid apply to all cases that might be brought by an individual to whom the clauses apply. As has been pointed out, that is entirely irrespective of whether the cases have any connection with any past terrorist activity or whether they are good or bad, and irrespective of who might be affected by them; for example, members of an individual’s family might lose their rights in a housing case brought against a defaulting landlord where housing conditions were making that tenant’s children ill. These are blanket restrictions that are entirely inappropriate.

As the Committee will know, eligibility for legal aid is governed by a merits test in every case. If a case does not stand a reasonable chance of success, legal aid is not available. There is a financial eligibility test, which means that legal aid will be available only if an applicant is unable to fund litigation. These provisions are positively designed to deprive of legal aid a claimant who might otherwise secure it. A claimant who, by definition, has a good case, would otherwise be eligible on the basis of the merits test, and who cannot afford a lawyer would be deprived, under these provisions, of any legal representation before the courts, even though, as the noble Lord, Lord Pannick, said, the claimant’s case may be utterly irrelevant to any present or past wrongdoing and vice versa. As the noble Lord, Lord Anderson, pointed out, the gravity of the terrorist offence relied on may be low. That is a denial of access to justice which we simply should not countenance, and I suggest that the Minister should not countenance it either. It is, quite simply, wrong.

National Security Bill

Lord Anderson of Ipswich Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

So I would invite the Minister who replies to this debate to see that this is a very simple point. It would do absolutely no harm to take out the words that we have complained of in the amendments, it would improve relations with Cyprus—already very close—and it would apply something that we always strive for in this House, though not always in another place, which is consistency of wording in the statute. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I declare my connection with the Government of Cyprus, as detailed in the register, and, like my noble friend Lord Carlile, I have spoken to the High Commissioner about this. Clause 97, as the noble Lord, Lord Carlile, has said, is a sufficient and constitutionally appropriate way to apply legislation of this Parliament to the SBAs. In light of that power, like my noble friend I have difficulty in understanding why it continues to be thought necessary for Clause 7, by its definition of “prohibited place”, to apply Clauses 4, 5 and 6 to the SBAs directly.

The noble Lord, Lord Carlile, has said nearly everything, so I will make just two points, addressing what I have seen to be arguments that the Government have sought to make in respect of these clauses. Firstly, there is said to be a partial precedent in Section 10 of the Official Secrets Act 1911—well, what may have been appropriate at the height of empire is surely not appropriate now. Secondly, it is said that these clauses are evidently not intended to apply in the SBAs, as may be seen from the fact that the police powers in Clauses 5 and 6 are vested only in UK officers; yet the phrase “prohibited place” in each of those clauses is clearly defined as including the SBAs. The impression given by those clauses is that powers in the military areas, and indeed in adjacent areas lived in and farmed by local people, are vested in British constables.

That impression may not respond to realities on the ground, but it is certainly unfortunate, and I hope the Minister will do what he can to dispel it, hopefully by accepting these amendments.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on these amendments, and I have also spoken with the High Commission; my noble friend Lord Purvis has spoken to both the Minister on the Front Bench and to the noble Lord, Lord Ahmad, in the Foreign Office. If I have an interest to declare, it is that 25 years ago I worked on the Cyprus conflict and discovered a fair amount about the complexities of Cypriot politics—and they are no less complex today than they were then.

I will make a number of domestic comparisons. This is in my experience very much a Home Office Bill; it does not appear to take into account diplomatic niceties or the sensitivities of other states. We have some bitter experience in this country of sensitivities about sovereignty and the attempts by other states to exert legislative authority over this country, in relation to the EU. We are still being told that the European Court of Justice has imperial ambitions, and that we had to regain our sovereignty because it was trying to legislate for us, about our country.

Beyond that, of course, we have US bases in this country. I am very familiar with RAF Menwith Hill, which is close to where I live in Yorkshire, and I know a fair amount about RAF Mildenhall. The Minister will remember that when it appeared that the wife of a US serviceman at RAF Mildenhall was trying to evade British law by claiming diplomatic immunity and then going to the United States, there was a campaign of outrage in the Daily Mail, the Daily Telegraph and others over this incursion into British sovereignty.

I remind the Minister that the agreements between the UK and the United States over US bases in this country are extremely discreet: the details have not been published; they are renewed every 10 years without parliamentary debate; and the two countries negotiate quietly about the conditions under which they operate. They do not involve Congress legislating with reference to these extraterritorial bases in the United Kingdom. Indeed, if Congress were to legislate with reference to RAF Mildenhall, RAF Menwith Hill and other bases, I am sure that the Daily Mail, the Daily Telegraph and others would be outraged on our behalf at this apparent imperial incursion into British sovereignty.

I am conscious that Cypriot domestic opinion has as many elements, from the right to the left, as we have in this country. Of course, it would be a populist, nationalistic, mischievous campaign to provoke a public outrage in Cyprus about this apparent incursion into Cypriot sovereignty, but we in Britain now have some hard-won and bitter experience of how easy it is for populist and mischievous politicians to cause nationalistic outrage.

These references are not necessary. Clause 97 is enough. I hope that the Minister will take advice and consider that the Government should withdraw the references to the sovereign base areas in these other clauses. I repeat: Clause 97 is enough. The good will of the Government of Cyprus, and of the public in Cyprus, is important to this country, and we should not offend them.

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[Lord Murray of Blidworth (Con)]

The point, as the noble Lord will appreciate, is that the Bill should endeavour not to leave any potential vacancies which would potentially deprive the SBAs of applicability to this very important statutory provision. I reiterate the point I made in Committee that the Government consider that any references in the Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty, concerning the establishment of the Republic of Cyprus, between the United Kingdom, Greece, Turkey and Cyprus.

To address the point raised by the noble Lord, Lord Wallace, I can confirm that the Foreign, Commonwealth and Development Office and the SBAs were consulted extensively throughout the Bill’s development and agree on its conclusion. I therefore disagree with the noble Lord that relying solely on Clause 97 would cause no harm.

I hope this explains the need to maintain the references in Clauses 7 and 8 and why the Government cannot accept the tabled amendments.

[Lord Anderson of Ipswich (CB)]

The Minister has given us an explanation and I accept that the reference to a constable is to a United Kingdom constable, but Clause 6 gives the constable the power to clear people out of prohibited places. Why is it necessary for United Kingdom law to apply? Why is it not enough that this power should exist under the Order in Council applicable to the SBA? Since only the United Kingdom constable is covered in Clause 6, how can it possibly be necessary to define “prohibited place” for the purposes of Clause 6 as including places outside the United Kingdom? I just do not understand it.

[Lord Murray of Blidworth (Con)]

The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.

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If the Minister can provide sufficient assurance today from the Dispatch Box—I have to say that I have already discussed this with the Minister and he has been very flexible—I will be content that this defence finds the right balance, providing the necessary protection to our intelligence officers while also incorporating the required safeguards and maintaining a sufficient level of accountability and oversight. If that is the case, and that is made clear from the Dispatch Box, I will not press my amendments.

[Lord Anderson of Ipswich (CB)]

My Lords, I will speak to Amendment 68 on the supplementary sheet in my name and that of the noble Lord, Lord Carlile. The immunity that preceded this Clause 30 may have been doomed from the moment the noble Baroness, Lady Manningham-Buller, began her speech in Committee by saying that

“it seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law”.—[Official Report, 11/1/23; col. 1452.]

She was right. That was just one reminder of how fortunate we are in the calibre and integrity of our intelligence chiefs, including those who have found their way into your Lordships’ House.

We now have a further statutory defence which would bite on encouragement or assistance of foreign crimes, which, although unreasonable and thus outside the scope of the existing Section 50 defence, is none the less considered necessary for the proper exercise of a function of an intelligence service or the armed services. A defence is, as has been said, in any view more acceptable than an immunity. But the likely marginal gain of this one seems limited, and its purpose is obscured.

So I ask the Minister in this new context to deal with the issue which, as we have just heard, the ISC did not look at. Why is this defence so broad in its application to the Armed Forces? The Minister indicated in Committee that the immunity was

“confined very much to the intelligence support by the Armed Forces”.—[Official Report, 11/1/23; col. 1458.]

We all know that the Armed Forces sometimes deploy in support of intelligence work overseas by the agencies. We also know that the Intelligence Corps has its own abilities for the gathering and analysis of intelligence. That is captured by my amendment, though perhaps not by that of the noble Lord, Lord Beith.

What justification is there for extending this new defence to activities of the Armed Forces that are not intelligence related? Exceptions to the rule of law should be tightly controlled. Why should service personnel be exempt from the same law that applies to the rest of us outside the special circumstances of intelligence? From the debate in Committee, I understood those were the only circumstances thought relevant. I hope the Minster will be able either to explain this or to accept my amendment to his amendment. In the light of what we have just heard from the noble Lord, Lord West, the Minister also has a great deal of explaining to do in relation to the important points that he raised.

I would like to make two comments on Amendment 67, in the name of the noble Lord, Lord West. I have two reservations about it. Necessary and proportionate is the test, and I would have thought that conduct that is necessary and proportionate is also reasonable, and therefore would benefit in any event from the Section 50 defence. I just wonder how much this really adds.

Secondly—I defer to more experienced criminal lawyers than me, of whom there are at least two in the House—the concept of proportionality could be quite a complicated one to explain to a jury. I am not sure I can think of any other criminal offence in which that concept exists. Proportionality in law, as I recall, is a four-part test, explained by the Supreme Court in the Bank Mellat case. That might rather complicate the route to a verdict. However, those are technical points.

The objections raised by the noble Lord, Lord West, are very serious. It is in the interests of the agencies to co-operate to the very fullest extent with the ISC. It is in the interests of all the rest of us, and I am quite sure it is in the interest of the Home Office as well. It is very distressing to hear that that did not happen in this case. So, in view of the serious points that the noble Lord made, and despite my rather lukewarm feelings about his amendment, I shall listen very carefully to what the Minister has to say in response. I sense that perhaps this is a discussion that will need to continue.

[Lord Carlile of Berriew (CB)]

My Lords, I rise briefly, I hope, to say that, first, I agree with everything that my noble friend just said and will not repeat it. Secondly, I regard Amendment 66 to be a considerable improvement on what we were faced with before we started the Bill. Indeed, it is not a provision that provides immunity, it is evidence-based, it has a strong public interest element, but it is not perfect. One of the complaints I have received—only anecdotally but from authoritative sources—is a lack of understanding, among fairly senior public servants, of why the Secretary of State no longer carries any responsibility for the sort of decisions referred to in Amendment 66. The requirement in its subsection (5) that the Defence Council must ensure that the Armed Forces must have various arrangements in place is welcome as far as it goes, by why are Secretaries of State being eased out of any level of responsibility for decisions of this kind? I am not sure there is total confidence, among the kind of officials I have referred to, in the Defence Council to be as definable a source of responsibility as the Secretary of State.

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[Lord Sharpe of Epsom (Con)]

I will turn to ministerial responsibility if the noble Lord will bear with me. In fact, I am going to do it now. The Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. I have already said this, but there is more to say on the subject. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections and regular scrutiny by the ISC. I will return to this in a second.

I now turn directly to the amendments tabled by the noble Lords, Lord Beith, Lord Anderson and Lord Carlile, which, in short, seek to do two related things: to restrict the activities covered by the defence for the MoD to those which are related to intelligence activities, and—in the case of the amendment of the noble Lord, Lord Beith—to restrict the defence to apply to the MoD only where it acts for UKIC.

I will now speak on behalf of the MoD and my noble friend Lady Goldie, who has sat through this debate. With reference to the Armed Forces, the amendment will enable more effective co-operation with our international partners. It will address operational challenges and remove the personal risk that trusted and dedicated individuals face for carrying out their proper official duties, whether as serving members of our Armed Forces or as intelligence officers within our UK intelligence community.

The amendment is principally concerned with addressing risks arising within an intelligence-sharing context, a primary activity of UKIC. What is perhaps less understood is the criticality of intelligence activity from an Armed Forces perspective, with intelligence sharing often forming a necessary part of wider co-operation with our allies. I assure noble Lords that the amendment is about clarifying the law and removing liabilities which sit onerously with individuals going about their lawful and legitimate duties.

The UK is committed to the rule of law and we would never collaborate or share information with a foreign partner with the intention of supporting unlawful activity overseas, but the SCA amendment does not change that. All aspects of the activities of our Armed Forces will continue to be bound by the relevant law of England and Wales and of international law. There will be no change to the UK’s international legal obligations, including under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and on assisting an unlawful act under Article 16 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts.

This defence will apply only where activity is necessary for the proper exercise of a function of the Armed Forces, and any individual found to be working outside the proper functions of the Armed Forces will remain liable for those actions. Actions not in compliance with the MoD’s robust internal policies and processes, again such as the Fulford principles and the OSJA Guidance, which are designed to ensure that MoD officers do not knowingly support unlawful activity, would not be in the proper exercise of a function of the Armed Forces.

I turn to the amendment tabled by the noble Lord, Lord Anderson. My noble friend Lady Goldie thanks him for the opportunity to discuss this with him. I understand that, because of a technical omission, he may not move his amendment tonight, but my noble friend Lady Goldie has—

[Lord Anderson of Ipswich (CB)]

As a point of correction, the omission has been remedied and the amendment is on the supplementary sheet.

[Lord Sharpe of Epsom (Con)]

My noble friend Lady Goldie has not been able to discuss that with our right honourable friend the Secretary of State for Defence, who is currently abroad, but she undertakes to do that and to engage with him on his return.

I turn to the amendment in the name of the noble Lord, Lord West. I am grateful for his contribution at Second Reading, where he confirmed that the ISC recognised that the government amendment identified a legitimate problem. This proposed amendment seeks to insert proportionality into the defence we are proposing in Clause 30. The objective of proposed new Section 50A is to provide clarity on how an individual working for UKIC or the Armed Forces can defend against a case in which they face personal criminal liability for the SCA offences.

For the reasons outlined previously, the Government consider that the existing reasonableness defence in Section 50 of the SCA does not achieve this, given we would be asking a jury to consider what is reasonable in the complex operational circumstances in which our intelligence agencies and Armed Forces work with our international partners to protect the United Kingdom. The Government consider that inserting a proportionality requirement would have the same effect, in that it reduces the clarity of the defence, which not only does not achieve the objective of providing greater certainty to those who are carrying out vital work to protect us all but complicates a defence which is currently based on the functions of the organisations concerned. On that basis, we think that explicit reference is best left out of the defence, and we therefore cannot accept this amendment.

However, to be clear, considerations of proportionality are a crucial component of operational planning and delivery, and core to many of the legal frameworks with which UKIC and the Armed Forces are required to comply. Any joint working with a partner must be in accordance with domestic and international law, including relevant principles of reasonableness, necessity and proportionality. Where the intelligence services or Armed Forces do not apply proportionality consistently with their legal or policy obligations, that would not be a proper exercise of their functions. To be completely clear, a person’s lack of compliance with their legal and policy obligations could be considered by the prosecution and would impact the availability of the defence —that includes proportionality.

Arrangements in place ensure that UKIC and the Armed Forces apply rigorous safeguards, standards and internal processes for determining that activity is lawful and properly exercised. The arrangements include the following: operational decisions are recorded, taken at appropriate seniority and made with the benefit of advice from specialist legal advisers to ensure compliance with domestic and international law; all personnel receive mandatory training on their legal obligations; policy documents set out specific requirements for different activities, including what authorisations are required and how to decide whether activity is necessary, reasonable and proportionate. Compliance with these requirements ensure that acts are within the proper exercise of the functions of the organisation concerned.

Some of these policies have been published, such as the Fulford principles, where the passing and receipt of intelligence relates to detainees, the compliance of which is assessed by the Investigatory Powers Commissioner’s Office, as I have already noted. Arrangements can also go beyond pure legal considerations, with ethics counsellors in post to discuss the difficult decisions we sometimes take when balancing risk.

To go back to Secretaries of State, they are accountable for the work of the intelligence services and the Armed Forces in Parliament. A central part of their obligations will remain authorising the required operational activity at the appropriate time.

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[Lord Sharpe of Epsom (Con)]

My Lords, I cannot confirm that from the Dispatch Box, but I will write to the noble Lord with the appropriate clarification. I do not actually have a copy of the OSJA Guidance in front of me, but I appreciate the points he is making.

I return to the third concern raised by the noble Lord, Lord West. I can confirm that, where a member of the intelligence services or the Armed Forces conducted activity that did not comply with the arrangements—namely, the rigorous safeguards, standards and internal processes that I described earlier—this breach of the arrangements could be scrutinised by the proper oversight mechanisms; for example, an error would be reported to IPCO for a breach of the Fulford principles. It could be considered by the prosecution and would impact the availability of the defence. I also assure the noble Lord that the introduction of this new defence, in and of itself, will not lead to fewer ministerial authorisations sought by the intelligence services or to less daily oversight from Ministers and/or judicial commissioners over intelligence activity. I know that he asked me for an explicit reassurance on that point.

I conclude by saying that, for the reasons I have outlined, the Government cannot support the amendments tabled by noble Lords against Clause 30, and therefore ask noble Lords not to press their amendments. I also ask the House to support the new SCA defence amendment tabled by the Government.

[Lord Anderson of Ipswich (CB)]

The Minister has been helpful, but I hope he can be more specific. When does he think the encouragement or assistance of an overseas crime, conduct which is penalised by the Serious Crime Act 2007, might be necessary for the proper exercise of a function of the Armed Forces, other than in the intelligence context? For my part, I am quite prepared to accept that it may be necessary in the intelligence context; what I have not heard from the Minister is any suggestion of any other context in which it might be necessary, yet he asks me to withdraw my amendment, which would limit the application of the defence to the intelligence context. It may be that his answer will be in what I think he said about the noble Baroness, Lady Goldie, needing further time to consult ministerial colleagues, but if I am to withdraw my amendment, and those discussions have not yet taken place, what assurance can he give as to possibly bringing back the issue at Third Reading?

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Tabled by

[Lord Anderson of Ipswich]

68: In inserted section 50A(2)(b), leave out “a” and insert “an intelligence-related”
Member's explanatory statement
This amendment would restrict the application to the armed forces of the new defence to charges under Part 2 of the Serious Crime Act by limiting it to the exercise of intelligence-related functions.

[Lord Anderson of Ipswich (CB)]

Given the Minister’s undertaking, I shall not move the amendment.

Amendment 68 (to Amendment 66) not moved.

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[Lord Purvis of Tweed (LD)]

My Lords, I am not sure whether the noble Lord will seek to test the opinion of the House—he is nodding from a sedentary position. If he does, we will support him. However, that is not to disregard that the Government have listened and responded positively to the points made in Committee on the need for independent oversight.

Therefore, I will support what the Government say, with just with one question regarding oversight and their intention. We have two former independent reviewers in the House at the moment. I am not sure what normal practice is, but the Government’s amendment, regarding the independent reviewer providing a report to the Secretary of State and the Secretary of State then laying that before Parliament, gives no indication of a timeframe for laying the report before Parliament after it has been received from the independent reviewer. Given the earlier comments from the noble Lord, Lord Coaker, regarding Governments not providing information to Parliament in a timely manner, could this unfortunately be a wee loophole in the independent reviewing? It seems that the amendment gives Ministers complete discretion on when they may present reports to Parliament. Therefore, reports could be received from an independent reviewer but not presented to Parliament for a considerable period or at all.

I hope that is not the case and that this can be clarified by the Minister, but it is an omission within the Government’s amendment, which is otherwise welcome. As I say, the Government have moved, but I hope that the Minister can respond on the areas of omission.

[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.

I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.

The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.

The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.

I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.

National Security Bill

Lord Anderson of Ipswich Excerpts

3rd reading
Monday 13th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I still feel quite grumpy about the Bill, but I accept that the Government have moved a little. I very much hope that, when it gets back to the other place, Members there will perhaps see fit to introduce stronger protections for journalists. I understand that something has gone into the Public Order Bill, but I think something should have been in this Bill as well.

[Lord Anderson of Ipswich (CB)]

My Lords, we on these Benches are often critical of the Government—of either colour, I understand—so it is perhaps appropriate to record my appreciation, at least, to the Minister and indeed to the Security Minister, for the patience with which they listened to us, but also for the imagination with which they reacted, not simply producing cosmetic tweaks that resulted in dogs being called off, but being prepared to go back, particularly on the political tier of the foreign influence registration scheme, to first principles and to think it out again, with the consequence, I suspect, that we are now left with something of real value, rather than the bureaucratic nightmare with which we were threatened when the Bill left the Commons.

Amendment 1 agreed.