National Security Bill

Lord Carlile of Berriew Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

Moved by

[Lord Carlile of Berriew]

26: Clause 7, page 6, line 39, leave out “or the Sovereign Base Areas of Akrotiri and Dhekelia”
Member’s explanatory statement
Clause 97 (amended by the Government) adequately reflects the context and importance of Sovereign Base Areas to UK national security and defence, and allows for Orders in Council, with appropriate modifications, to extend Part 1 to the Cyprus SBAs. This is consistent with other UK legislation to date.

[Lord Carlile of Berriew (CB)]

My Lords, we move from the rather contentious issues of the last two groups to a little bit of sunshine, for this group is all about Cyprus. It is slightly technical, but the point of principle is easily stated, so I will deal with the technicalities first—but not before I have stated that I am very fortunate to have as companions on this amendment my noble friend Lord Anderson of Ipswich and the noble Lord, Lord Wallace of Saltaire.

Clause 97 of the Bill has been helpfully amended by the Government. It deals with the extent of applicability of the provisions of the Bill outside the United Kingdom. Subsection (2) states:

“His Majesty may by Order in Council provide for any provision of this Act other than section 22 to extend (with or without modifications) to the Sovereign Base Areas of Akrotiri and Dhekelia”.


That seems pretty straightforward, so it would appear from that that there is a proper procedure—an Order in Council which could be modified and which would bring into the Bill those sovereign base areas of Akrotiri and Dhekelia. On the other hand, if one turns to Clause 7, which is headed “Meaning of “prohibited place””, the definition of a “prohibited place” means Crown land in the United Kingdom, or the sovereign base areas of Akrotiri and Dhekelia, which are used for UK defence and other purposes. It seems to me, and to those of us who have put our names to this amendment, to be nothing more than a mistake.

Originally Akrotiri and Dhekelia, the sovereign base areas, were included in the Bill; the Government very sensibly changed their mind by amending the original Clause 97, but they failed to remove the part of Clause 7 that includes Akrotiri and Dhekelia. As the signatories of these amendments, we simply wish to apply some consistency to the Bill and remove those sovereign base areas, understanding, of course, that there is every potential in appropriate circumstances—and I can imagine circumstances which could be appropriate— for the extent of the Bill, apart from Clause 22, to be extended to those sovereign base areas.

I should say to your Lordships that this is not a declaration of an interest—it is the opposite, because I made the coffee myself. I had the pleasure of a visit from Andreas Kakouris, the High Commissioner of Cyprus—a very able, interesting and delightful person, and a very modest and diffident person on these issues, along with a very senior and able member of his staff. I know that other Members of your Lordships’ House have been approached by the High Commission, and so have the Government; one of the reasons why the High Commissioner came to see me, and other members of your Lordships’ House and the other place, was that he had the impression that the very simple point he was trying to make had not been fully understood by the Government.

I will remind your Lordships that Cyprus has a very new President, Nikos Christodoulides; he has formed his Government and his Cabinet members are there to see—Members can look them up on the internet if I am boring them. Not a small number of them, I am delighted to say, have legal qualifications obtained in the United Kingdom, and therefore one can safely assume that they are able at least to see both sides of some problems—but they do not see one side of this problem. The new President and his predecessor have already formed significantly close relations with the United Kingdom Government, and at a diplomatic level the High Commissioner emphasised to me the pleasure he had gained from the quality of the relations that he, his previous Government and his new Government had been able to make with the United Kingdom Government—and particularly with the Foreign, Commonwealth and Development Office.

But they are understandably sensitive to the sovereign base areas being put in Clause 7 of this Bill in a way that makes them feel like some outer province of the United Kingdom, which they are not. They are, as all your Lordships will know, in the European Union, they are very west-leaning and they understand the problems that there are. There are problems in relation to economic issues in Cyprus, including the nature of investors and so on, and they are very sensitive to that. But they do not understand why they have to be treated in a way that is insulting not to the Government, because they are people who do not feel insults and just want the right thing to be done, but to the population of Cyprus. Apparently, the Cyprus Government have received significant representations to that effect.

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[Lord Murray of Blidworth (Con)]

As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.

[Lord Carlile of Berriew (CB)]

My Lords, I am afraid I am very puzzled as a result of the Minister’s reply.

First, I think he was suggesting that the Government of Cyprus had been fully consulted. If he was suggesting that, all I can say is that that is the opposite of what I was told, and what the noble Lords, Lord Purvis, Lord Wallace and Lord Anderson, and everybody else who has been spoken to has been told. Secondly, why did the Government change Clause 97? Clause 97 provides for the powers earlier in the Bill to be operated within the SBA following an Order in Council. Are the Government saying that the justice provisions in the SBA are inadequate in some way? I can tell your Lordships that those of us who live around the legal profession know an awful lot of people who go and do cases and even sit as judges in those places, and that is not what they have found on the whole.

I would suggest that the Minister’s reply was insensitive—if I can be forgiven for using that word—and injudicious, and I invite the Government to consider it between now and the coming into law of this Bill. I am not going to press this to a Division tonight; I am not going to ask for the opinion of the House. But I feel a strong sense of dissatisfaction at the explanation, such as it is, that has been given. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

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[Lord Sharpe of Epsom (Con)]

My Lords, Amendments 40, 41 and 50 relate to the offence of foreign interference.

Amendment 40 makes a procedural and technical tweak to address changes to the timetables of this Bill and the Online Safety Bill. The addition of foreign interference to the list of priority offences in Schedule 7 to the Online Safety Bill is government policy, which has been agreed at every stage of this Bill since its introduction. Designating foreign interference as a priority offence under the Online Safety Bill would disrupt state-backed disinformation targeted at the UK through the duties imposed on platforms by the relevant provisions in the Online Safety Bill.

However, now that the National Security Bill has overtaken the Online Safety Bill in its parliamentary passage, we must address the procedural challenges posed by this change to respective timetables. Government Amendment 40 will remove the reference to the Online Safety Bill from Clause 13(8) of the National Security Bill. The Government will then seek to add the offence of foreign interference to Schedule 7 to the Online Safety Bill via an amendment to that Bill. The effect of this amendment will be exactly the same as the current approach; it is simply the change in timetabling that means this amendment is necessary.

Government Amendment 41 clarifies the scope of the foreign interference effect contained within Clause 14(1)(a) to ensure it is not misinterpreted. Foreign interference includes interference with rights and freedoms that are protected under domestic law, such as freedom of speech. We know that foreign states have sought to intimidate or threaten diaspora communities with punishment to prevent them engaging in lawful protest activities. We want such activity taking place in the UK to be covered by the offence of foreign interference. Government Amendment 41 simply changes the wording in the offence to “in the United Kingdom” as opposed to

“as it has effect under the law of the United Kingdom”.

This will ensure that it is not misinterpreted to have a broader effect than we intend. It does not change our policy or affect the operational utility of the offence.

Amendment 50 is minor and does not introduce new policy. It simply reinforces the Government’s intention behind what is originally meant by “political decisions”.

Some concerns have been raised that references to proceedings in Parliament in both the offence of foreign interference and the foreign influence registration scheme risk creating unhelpful ambiguity about the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights. The Government’s position is that such references did not and could not displace provisions in the Bill of Rights and were not intended to do so. However, we have amended the provisions to ensure there can be no suggestion of interference with privilege.

To address these concerns, government Amendment 48 removes references to proceedings of the UK Parliament and devolved legislatures from the definition of “political processes”. A key element of foreign interference is the infiltration of our democracy, including the institutions and processes which uphold our democracy. The other amendments we have tabled therefore seek to ensure that the offence still protects against such interference.

Amendment 49 adds to the definition of “political processes” a reference to

“the activities of an informal group consisting of or including members of”

the relevant legislatures of the United Kingdom. The policy intention remains the same—to capture foreign interference in Parliament targeted at the heart of our democracy—but we are achieving it in a slightly different way. I will briefly explain how we will do this.

The majority of what we wish to capture in relation to interference with Parliament will be covered by the effect in Clause 14(1)(b)—the limb relating to public functions—as MPs and other officials within Parliament will be exercising their public functions. It is right that we seek to criminalise activity where, for example, somebody is acting for a foreign power and threatens violence to affect how a person exercises their public functions.

However, with this amendment we ensure that we also capture activity that is part of our democratic processes but which does not have official status within Parliament. We have therefore added reference to informal groups, which will include APPGs, to the definition of “political processes”. Foreign powers seeking to interfere in political processes through those who do not have public functions—for example, an external secretariat—will continue to be caught by the offence.

I turn briefly to government Amendments 42 and 44, which give effect to the new approach I have outlined, with Amendment 44 relating to the “legal processes” limb. They give effect to the new approach such that those interference effects apply otherwise than in the exercise of public functions. Government Amendments 43 and 47 are consequential amendments following from the change in definitions.

Taken as a whole, the amendments do not introduce new policy but simply reinforce the existing policy on the interference from foreign states that this offence is designed to protect against. I therefore ask noble Lords to support the inclusion of these amendments and beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak to Amendment 51, which stands in my name and those of the noble Lord, Lord Wallace of Saltaire, the noble Baroness, Lady Hayter of Kentish Town, and my noble friend Lord Evans of Weardale.

This is about transparency. When the electors go to an election, obviously they consider the policies that are placed before them. They also consider the personalities that are placed before them, because they are voting for an individual to carry out the important and valuable role of their Member of Parliament. They also should be entitled to enough transparency to judge the ethical matrix in which each political party operates, as represented by the individuals who stand as candidates. This moderate and temperate Amendment 51 is an attempt to improve the knowledge that voters have about the ethical matrix of the political parties that stand behind the candidates they are able to vote for and have to choose from.

We know that there are problems about the ethical matrix of political parties. Sometimes it is not their fault, because outside forces, hostile actors from foreign countries, make interventions into elections—for example, via the internet—in an attempt to slant the vote in one direction or another. However, there is also a serious risk—I accuse no party of impropriety in this respect, at least for the purposes of this contribution to your Lordships’ debate—that foreign actors, foreign powers, may seek to influence an election, for example by making substantial donations to that party’s election fighting fund which enable it to fight the election at an advantage compared with other parties.

I will not go back to my days as a very happy Liberal and then Liberal Democrat MP and talk about the disadvantage we always started from because we had less money than the other parties. However, we were always worried, in those days at least—I am sure it is still the same today—by contributions that might have come from foreign powers and that would give an even greater advantage, concealed from the electorate, to those political parties.

So what this amendment seeks to do is protect us from the likes of Putin’s cronies, who might, one way or another, find their way to dinners, contribution events and even meeting people in this great building. We seek to establish a register. In effect, each political party would have to create a policy statement which meant that they were obliged to disclose at least the outline of contributions made by a foreign power—we are not talking about rich foreigners or wealthy businesspeople but about a foreign power which has a political reason for trying to influence the result of an election, either made directly or through an intermediary.

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Moved by

[Lord Carlile of Berriew]

51: After Clause 16, insert the following new Clause—
“Foreign interference in elections: duties on political parties(1) A UK-registered political party must, within three months of the passing of this Act, publish a policy statement to ensure the identification of donations from a foreign power (whether made directly or through an intermediary), and must keep that policy updated in accordance with guidance issued under subsection (2). (2) Within three months of the passing of this Act the Secretary of State must publish guidance on the provisions of this section.(3) A UK-registered political party must provide the Electoral Commission with an annual statement of risk management that identifies how risks relating to donations from a foreign power (whether made directly or through an intermediary) have been managed, and what measures have been put in place by the party to such effect.(4) In this section, “UK-registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000.”

[Lord Carlile of Berriew (CB)]

My Lords, I am very grateful to all those who have contributed to this debate. It is notable that around the House, apart from the Government Front Bench, everyone has spoken in favour of this amendment and nobody from the Conservative Party chapel, as it were, has spoken against it.

I was particularly taken by the metaphor from the noble Baroness, Lady Hayter, about knowing your donor—KYD. It is analogous with KYC—knowing your client—which, as she said, is universally applied by businesses these days when they receive funding from abroad.

The Minister is trying to be as helpful as he can. However, can I say kindly to him that he has missed the point of this amendment? Amendment 51 seeks to place an overarching responsibility on political parties to say how they will deal with direct or indirect foreign donations if they are offered to them. That makes it much easier for a candidate or a party official to say, “Sorry, we can’t take that because it’s in our statement of principle as to what we do”. Even though this is a relatively modest step, it would enhance the transparency of an honourable political process. We have lost some ground, compared with some other European countries in particular—not just western European countries but some central European countries too—in the transparency that we offer in elections. People are uncomfortable about it and the media are hounding on it.

With that in mind, and despite the blandishments of the Minister, I wish to test the opinion of the House. I beg to move.

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[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.

[Lord Purvis of Tweed (LD)]

My Lords, I understand that our order of business has been changed today. The Government Whip did not consult our Front Bench and, for those of us who had engagements during the dinner-break business, I think it is a discourtesy not to have at least consulted the Front Benches of other parties about changing the order of business.

That said, I welcome the government’s amendments. The noble Lord, Lord Anderson, is absolutely right. The noble Baroness, Lady Manningham-Buller, had indicated her hope that there would be government amendment in this area, and I thank the Minister for listening during Committee and for bringing forward these amendments. In Committee, I went to some lengths to outline what domestic procedures are in this area. The noble Baroness, Lady Manningham-Buller, asked something I thought was rather threatening: if she could have a quiet word with me outside the Chamber during the hour for other business we had then. I am glad to say now that I will accept that and bring the Minister with me, because there may be an element of consensus on a more sensible way of dealing with concerns raised about immunity for, potentially, very serious crimes committed overseas.

I am grateful that the domestic practices will now be considered similar to extraterritorial processes, acknowledging that there have been distinct differences. My questions, to some extent, are linked with those raised by the noble Lord, Lord West, on how this will be operated. In Committee, I highlighted the Government’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. I referenced the Ministry of Defence joint doctrine publications, and I highlighted the Security Service guidelines that had been released in a trial, and we now know more about them. There are a number of existing sets of guidance for the Cabinet Office, from the MoD and within the security services themselves on how, as the amendment states,

“arrangements designed to ensure that acts of a member of the service to which a provision of Schedule 4 applies are necessary”.

I would be grateful if the Minister could outline how guidance will be put together that will be for both domestic activities and now those in regard to defence under this part, whether that will be made public, and how it will interact with MoD guidance to address the similar concerns of my noble friend Lord Beith and the noble Lord, Lord West.

We know what MoD joint doctrine says regarding detainees overseas, but we do not know the principles that will apply to these new areas. Therefore, we need clarification on what they will be. I welcome the Government’s move. There needs to be further illustration of how it will be operable, and I hope the Minister will be able to provide that and give an indication of when guidance will be put together and will be published.