National Security Bill

Lord Coaker Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.

The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:

“safety or interests of the State”.

But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.

The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.

That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:

“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”


So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.

I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:

“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]


I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.

More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.

Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.

[Lord Coaker (Lab)]

My Lords, this is a very important group of amendments which in many ways goes to the heart of much of the debate that will take place on a number of amendments. It reminds the Committee that the heart of the issue is Clause 1(1)(b), which says that to commit an offence

“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.

Fundamental to that is that what we are discussing here, as the noble Lord, Lord Marks, ably set out, is what we actually mean by the interests and safety of the United Kingdom. It is to the great credit of our country that we can debate that here to try to decide what it should be.

I agree with the majority of noble Lords who have said that it is important that we try to understand how to make sure that defending the interests and safety of our country is about national security and defence. The noble Lord, Lord Evans, reminded us that there are grey areas in that respect. That is not a criticism of having the debate, but it means that we have to decide where we want to draw the line. I have mentioned this to the noble and learned Lord Hope, and I pray him in aid. He mentioned it with respect to the Public Order Bill, and again with this one. It is an abrogation of this Parliament’s responsibility if it does not seek to answer these difficult questions and just leaves it to the courts, saying that it is for the courts to decide and determine. We ourselves should try to give greater clarity to what we as legislators think that phrase actually means.

It is incumbent on the Government to say what they will do to try to define this, as Amendment 2 moved by the noble Lord, Lord Marks, and my Amendment 3 seek to do. Either they should say “We don’t need to do that”, lay out why it is not necessary for Parliament to determine it and why they think we should leave it to the courts, or say how we will get some sort of definition that makes sense and gives greater clarity. To be frank, that is a real problem for the Bill.

As the noble Lord, Lord Purvis, pointed out in his interesting and incisive remarks, along with other noble Lords, the Government say at paragraph 62 of the Explanatory Notes:

“The term safety or interests of the UK is not defined”.


They have already made up their mind that they do not need to define it. The basis of these amendments is that we think they do. We do not oppose the Bill or think it is not important that we protect the safety and interests of the United Kingdom, but somewhere along the line our Parliament should try to say what that means. The Government say in the Explanatory Notes that it is not defined and, as the noble Lord, Lord Purvis, mentioned,

“case-law has interpreted it as meaning, in summary, the objects of state policy determined by the Crown on the advice of Ministers (see the Court’s view in Chandler v Director Public Prosecutions (1964)”.

I remind noble Lords that in that judgment, the House of Lords—constitutional arrangements were different then—essentially rejected the idea that it was for a jury to determine or decide whether something was in the interests of the state. As Lord Pearce’s judgment stated,

“the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the opinion of a jury, to be.”

I am not a lawyer—I have been a politician all my life—but I would argue with that. It may be quite correct from a legal point of view, but sometimes Parliament has not caught up with public opinion or where people are. Often, juries are an important way of determining what the public think, and they work.

We have seen recent examples of that. The noble Baroness, Lady Jones, reminded us well of all the different issues that have arisen with protests. They are irrelevant to the Bill, but let me give another example: assisted dying. Time and again, juries have refused to convict on assisted dying, because they will not convict somebody in those terrible circumstances and do not believe that Parliament has caught up with the reality of where we are.

[Lord Faulks (Non-Afl)]

I entirely understand why the noble Lord is concerned about any uncertainty in these provisions, given the significant penalty, but is he at all reassured by the fact that it would be necessary for a jury to be satisfied beyond reasonable doubt that a defendant knew or ought reasonably to have known? That is quite a high threshold to be crossed before you even get on to this definition.

[Lord Coaker (Lab)]

I agree; I am just making the point that a definition would also help and give us certainty and clarity. It is important for a Bill that seeks to address issues of national security that it seeks to define that. The debate has already taken place in Parliament; the noble Lord takes the view that it is unnecessary, but I think a definition would be helpful. A number of noble Lords have said that, in the Bill as drafted, it appears that not only national security or defence issues will fall under the Bill but a whole range of other potential offences which have nothing to do with national security or the defence of the realm.

That is the clarity we seek, and it is right to explore it in Committee. It will be interesting to hear what the Minister says as to why my amendment or those of the noble Lords, Lord Marks and Lord Purvis, are unnecessary. Maybe he will use the argument the noble Lord put forward to say that that is what makes it unnecessary—

[Lord Purvis of Tweed (LD)]

My Lords, I agree with the thrust of the noble Lord’s argument. I was just reflecting on the intervention by the noble Lord, Lord Faulks. Of course, the jury will have to reach beyond reasonable doubt whether the individual knew. The question is what the mechanisms are of proving beyond reasonable doubt that the person knew what those interests of the Government were, if those interests are not specific and linked to national security. If the Government have made a case that those interests are as broad as the Minister in the House of Commons indicated—that they were linked with public health or economy—that makes the task in the courts much harder, I would have thought. Therefore, it is in the interest of securing better prosecutions that those restrictions are on the face of the Bill, as the noble Lord, Lord Coaker, has indicated.

[Lord Coaker (Lab)]

That is quite right. As I said, the problem with the Bill is that there is no indication of what else may be covered by the “safety or interests” of the state, or what the limits of those terms might be. As I have been arguing, and as others have said, as well as the prevention of terrorism and espionage, they could extend to policies on energy, national infrastructure, the protection of water, power, food, health services, transport, law and order, organised crime and immigration controls. The extent of the powers that may be taken in the Bill could be used in relation to a wide range of state interests, not just state interests related to national security or to the defence of the realm. The interests of the state clearly are ensuring that we have enough energy, but should that be covered by a National Security Bill? These are questions that the Minister needs to answer, and it will be interesting to hear his answer.

I will make a couple of final remarks. Like many, I am somebody who has never read the Official Secrets Act 1911, but in preparation for Committee—and knowing the depth of knowledge, experience and wisdom that we have around—I thought it was necessary to make sure I was quoting. The Official Secrets Act 1911 says under “Penalties for spying”:

“If any person for any purpose prejudicial to the safety or interests of the State—”.


The Official Secrets Act 1911 says that it has to be for a purpose “prejudicial” to the interests of the state. Logically, should not defendants or people have the right also to argue that their act was not prejudicial to the state? The Act says that your act has to be prejudicial, so surely you have a right and a responsibility to prove that it was not prejudicial. That argument could take place within the courts or wherever. This argument about someone’s actions in relation to the safety or interests of the state, and whether they were prejudicial, needs some sort of definition. Without it, how on earth do we know whether somebody is going to commit an offence under this Act? It would be for somebody to interpret.

Can the Minister clarify what the Government mean by “safety or interests” of the state? Who determines what they are? How can anybody act against that in a way which does not break the law, whether it be through protests or actions? If I take action outside of an RAF base, protesting against it and trying to disrupt things going in or out, or if I am at the peace camp at Faslane, will that be classed as a protest? Where does it become something that falls foul of the Bill? In other words, where do you draw the line? That is an important question for the Government to answer.

My amendment and those put forward by the noble Lord, Lord Marks, and others say to the Government that it is not good enough just to say the “safety and interests” of the state. What does that mean? People have challenged that over the decades. They have stood up and said that the safety and interests of the state are something that they challenge or do not agree with. Through history, that is how progress and reform have taken place. At the time, those protesting, taking action or conducting various activities have sometimes been accused of undermining national security or acting against the interests of the state.

We do not want to pass a law which leads to more confusion or a greater inability for Parliament to say that these are the sorts of actions we mean. That is the whole point of the amendment from the noble Lord, Lord Marks, which I support. It says that if it does not relate just to defence and national security, where is the grey zone that the noble Lord, Lord Evans, mentioned? Where do we draw the line? As the noble and learned Lord, Lord Hope, keeps reminding us, we should not abrogate our responsibility on that. It is our fundamental responsibility to try to answer that question.

[Lord Sharpe of Epsom (Con)]

My Lords, once again, this was a helpful debate, as noted by the noble Lord, Lord Coaker. I thank all those who participated. These amendments seek to limit the “interests” element of the “safety or interests of the United Kingdom” test which applies to many of the clauses in Part 1. As noted by many noble Lords, this concept was explored extensively in the other place.

The majority of these amendments change the “interests” element to cover only security or defence interests. This moves away from the safety or interests of the UK test that already exists and is understood in current espionage legislation. Indeed, the Law Commission noted its support of the Government’s decision to retain this term. At the oral evidence session to the Public Bill Committee, it noted that

“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act”—

those of 1911 and 1920—and

“avoids what might risk being an unduly narrow focus on national security”,—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]

as the noble Lord, Lord Evans, noted.

The experience of the Government and the Governments of allied states is that espionage is frequently targeted at and can result in significant damage to all sorts of national interests, some of which may fall outside the scope of security or defence interests. Indeed, any attempt to narrow or define the interests to the UK risks creating a test that is quickly outdated, as the UK’s interests naturally and properly evolve.

A number of noble Lords referred to the Chandler v Director of Public Prosecutions case that was heard in this House in 1964. It concluded that the interests of the state meant the objects of state policy, determined by the Crown on the advice of Ministers. That is noticeably distinct from protecting the particular interests of those in office. I heard what the noble Lord, Lord Purvis, and others said in relation to the 2001 case. However, in answer to the noble Lord, Lord Coaker, the Government do not think it can be defined in legislation. It needs to retain flexibility for future threats as they evolve.

For this reason, it would also not be appropriate for the Secretary of State to attempt to define the UK’s interests in a Statement to Parliament, as in the proposed amendment to Clause 1. Notably, these amendments do not include economic interests, interests related to public health, as the noble Lord, Lord Purvis, noted, or interests related to preserving our democracy—to name just a few areas that would be overlooked by them. We know that these areas are targeted by hostile actors, and they should rightly be protected.

I was asked what safeguards are in place to prevent the Government using this legislation inappropriately—

--- Later in debate ---

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

My Lords, I entirely understand the position taken by the noble Lord, Lord Evans of Weardale, but, with respect, the fallacy that he falls into, and the fallacy into which the Government fall—the Minister has articulated it—is that, in the interests of being able to prosecute a wide range of activities, they threaten to lower the threshold for such prosecutions to a point where the responsibility for the decision on guilt lies not with a jury considering guilt or innocence but with those who decide to prosecute because they perceive a threat to the interests of the United Kingdom, and the interests of the United Kingdom are very wide.

I agreed with almost everything that the noble Lord, Lord Coaker, said; the one thing he did which I did not agree with was that he misquoted the Bill. The Bill is not about prejudice to the safety “and” interests of the United Kingdom. Everywhere that the phrase occurs, it says the safety “or” interests of the United Kingdom”.

[Lord Coaker (Lab)]

The noble Lord is quite right; I should have said that, and I meant to. I apologise to the Committee; that is what I meant to say. I thank the noble Lord for clarifying that.

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

I am quite sure that no apology was needed for what was plainly a slip in a detailed speech made without reference to lots of notes. But the point is an important one, because the protection of the interests of the United Kingdom is free-standing, and the point that almost every noble Lord who has spoken has made is that, because they are defined, there is no clarity at all.

The noble Lord, Lord Carlile, talked about opacity. It is not just opacity; it is that no one can know what is criminal. The prosecutors are there to decide what they will charge—certainly with the consent of the Attorney-General where that is required. However, where they make that decision, the jury is left with an impossible position. The judge is bound to direct the jury properly, under the terms of Chandler—that the interests of the United Kingdom are effectively what the Government of the day determine those interests to be—and the offense is left effectively without any clarity at all. That is our objection. I take it a little further, but it is an objection that illuminates the danger of going down that path. It is unjust not to have clarity about what behaviour is criminal, particularly where the sentences are so serious. It is also damaging to public confidence in the criminal law itself if prosecutors and defenders cannot know what is criminal and what is not.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I will very briefly follow my noble friends to agree with that proposition. There has been reference to the foreign power condition, and I will refer to that too.

First, I take the opportunity to say that I am grateful to the Minister for what he said to me earlier by highlighting Clause 29(5). Yes, it does include that the foreign power condition can be met,

“if the person intends the conduct in question to benefit a foreign power”,

without necessarily identifying that foreign power. However, that is not an exclusive meeting of the test, as my noble friend Lord Marks has indicated. The test can be met, for example, if one of two business partners who has some intellectual property or something of commercial value is in negotiations with, say, a sovereign wealth fund in the Gulf and then there is a dispute between the two business partners. While one wants to sell that to the sovereign wealth fund in the Gulf, the other says, “You can’t do that, because that is now in breach of the National Security Bill, because I believe that this is a trade secret.” That is because a foreign power, under Clause 30(1)(c), is

“an agency or authority of a foreign government”,

so a sovereign wealth fund seeking investment could be within that definition. Therefore, I have sympathy for the point made by the noble Lord, Lord Carlile, but a counterpoint has been raised by asking whether the Bill is the most appropriate way for national security to cover those aspects—and, on balance, I do not think that it is.

However, I agree with the noble Lord, Lord Carlile, that the acquisition, use or disclosure of a trade secret is unlawful where the acquisition, use or disclosure constitutes a breach of confidence in respect of confidential information. As I understand it, that was the thrust of his argument. That is also the law: we have transposed the Trade Secrets (Enforcement, etc.) Regulations 2018 into UK law, so we have that intellectual property legislation—including a nine-page trade secrets regulation. I listened very carefully to what the noble Lord said, and all of it, I think, is covered within existing legislation. The question then arises as to what the intent would be if one is either selling a trade secret or giving a trade secret to a foreign power to advance that foreign power.

That could absolutely be included in the Bill. The concern is that, given the way the Bill is drafted, so many other aspects could also be. That is the point we are trying to tease out: whether the Government intend that trade secrets are, as the noble Baroness indicated, some form of economic warfare, espionage or tactic. That is where the interest of the Bill should lie. It should not be the mechanism whereby trade disputes, commercial disputes or intellectual property disputes are resolved. Ultimately, that is where the Bill could be used. I do not think there are any in this Committee, but I am certain there are creative lawyers who might look for the most appropriate vehicle for the less appropriate cause. I am worried that the Bill would become one of those.

[Lord Coaker (Lab)]

My Lords, the amendments in this group relate to the new offences of obtaining or disclosing trade secrets. We support these new offences and agree that the Government should safeguard against threats to the UK’s trade policy. We see them as important amendments. None the less, we have had an interesting and important debate today. As the noble Lord, Lord Marks, has outlined, Amendments 8, 9 and 10 are about trying to understand why the Government believe that the offences need to have such a wide scope and whether narrowing them down would really have the unintended or bad consequences that the Government believe they would.

I have a couple of specific questions for the Government. The Bill says that there has to be a direct link to a foreign power, but suppose somebody obtains information such as a trade secret and sells it not to a foreign power but to a competitor business. Is that covered under the legislation? Is it the case that, under the Bill, to prosecute there would need to be a link from the individual to a foreign power and not just to a competitor within the UK?

The measures in Clause 2(4) to (7)—I think the noble Lord, Lord Wallace, referred to this in his Amendment 11—are really quite important. Why can the offence take place only outside the UK if it is in respect to possession by a UK national, as opposed to a UK national and/or a UK resident, or any other description of persons? Having talked about a narrow definition, I wonder why the Government have restricted the measures in subsections (4) to (7) to a UK national. I would be interested to hear the Government’s answer to that.

An interesting discussion and debate has taken place within the Committee about the JCHR recommendation. It is an interesting point that we will all want the Government to clarify. What is the Minister actually saying to the points from the noble Lords, Lord Carlile and Lord Marks, and the noble Baroness, Lady Ludford? The JCHR quite clearly states that:

“The theft of trade secrets that pose no risk to national security is more properly governed by the offence of theft (and other breach of confidence and intellectual property rules) than through new espionage offences.”


It would be interesting to understand whether the Government think the JCHR is wrong or whether it has a point. If the JCHR is wrong, why do the Government believe it is wrong? Maybe the points made by the noble Lord, Lord Carlile, have greater relevance with respect to this Bill. With those few remarks, I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have participated in another lively and entertaining debate. Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2. Amendments 9 and 10 seek to narrow the definition of a “trade secret” so that it captures only information which is actually subject to measures to protect it. Amendment 11 seeks to expand the scope of a “UK person”. The Government reject these amendments and I will try to explain why.

The offence of obtaining or disclosing trade secrets targets threats designed to undermine our economic prosperity, tackling the whole-state approach to national security adopted by state actors. The Government believe that economic prosperity and national security are inherently linked. You cannot have one without securing the other, and Clause 2 seeks to protect both.

--- Later in debate ---

The noble Lord, Lord Coaker, asked about the definition of UK persons. It goes beyond a UK citizen and includes someone who lives in the UK; it is not just UK citizens. The noble Lord also asked about foreign power and corporates. I would answer that it depends very much on the corporate. If I am wrong on that, I will write to the noble Lord.

[Lord Coaker (Lab)]

I am not going to disagree with the Minister, but on the question of the letter—and I am pleased that he is writing to me—could he put it in the Library, and do that with respect to all the letters, so that every noble Lord can see his answers to the various questions?

[Lord Sharpe of Epsom (Con)]

Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, we all hope that the noble Lord, Lord Pannick, will not be criminalised by this Bill, but we look forward to the Minister’s response and for the exemptions to which the noble Lord referred to cover him.

I want to make a couple of brief remarks, again supporting what the noble Lord, Lord Marks, is trying to do, which is to narrow the focus—that has been the subject of much of the debates have had on the various amendments. This amendment would require an intention that the conduct will prejudice the safety or security or defence interests of the United Kingdom and apply that to a number of clauses. The noble Lord, Lord Marks, has outlined quite adequately why a discussion about that and a decision for the Government are needed. I hope that the Minister will explain why the Government do not think it is necessary rather than just dismissing it.

I wanted something to be clarified, notwithstanding the fact that it may be a simple response. On visiting many military bases, one finds people outside them taking photographs and numbers and watching the activity because it is a pastime; it is something that is of interest to them. I do not think that the Bill will criminalise that, but on behalf of people who have an interest in something that I personally would not have an interest in doing, I wonder whether the Minister could clarify it. I have seen people taking photographs at RAF bases of the planes taking off. It is simply something of interest to them. It would be helpful for the Minister to clarify that they would not be caught by the Bill, even if unintentionally.

The noble Baroness, Lady Jones, was right to remind us about intention. It is important. We will come to the public interest debate later, but she referred to journalists and whistleblowers, who risk being criminalised even though their intention is not to undermine national security. That will take us to the public interest defence debate that we will get to later in the Bill.

In answer to the points and amendments from the noble Baroness, Lady Ludford, I think that the JCHR amendments—whether or not they are all right, and we heard a debate earlier on about them—are really important for the JCHR to have put before the Committee. What it is essentially saying is, “We think this is possibly something which impacts on the freedoms that we enjoy in our democracy”, freedom of expression being the one that the noble Baroness just referred to. The Government seek to modernise the national security law, which we all agree with—there is no disagreement in the Committee about that—but the noble Baroness, Lady Ludford, should not apologise for the JCHR; rather, we should congratulate it on coming to all of us and asking us to justify what we are doing and on asking the Government to justify what they are doing in the name of national security. There is a compromise to be made sometimes between national security and complete freedom to do X, Y or Z. All of us accept that. The debate, as we heard on earlier amendments, is where you draw the line. I, and other noble Lords, think it is important—whether in respect of this group or others—that a debate takes place in this Parliament, and we should attempt to do better at defining what we actually mean rather than just leaving it to the courts.

I say to the noble Baronesses, Lady Ludford and Lady Jones, and to others who continually remind us about the JCHR that I am sure it is sometimes immensely irritating to the Government, but that is the job. That, in a non-flippant way, is important, because there are compromises with freedom of expression, freedom of association, freedom to do X, Y or Z, and freedom for people to go about doing things exactly how they want to. It is a price we pay for our national security; how high that price should be is something we should not flinch from debating in this House.

The amendments from the noble Lord, Lord Marks, seek to put intent into these offences. If the Government do not believe that is important, it is necessary to argue the case as to why. On whistleblowers, journalistic freedom and so on, which the noble Baroness, Lady Jones, mentioned, I am sure we will come to that debate later when we discuss the public interest defence. I finish by saying again to the noble Baroness, Lady Ludford: more power to your elbow.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for another very interesting short debate. These amendments seek to amend or add a safety or interests test to the various offences throughout the Bill. I will address each offence separately, given the different effect each amendment will have on each offence.

Amendments 12, 15 and 16 would narrow the scope of the offence of assisting a foreign intelligence service, so that the offences would apply only to assistance that would, or is intended to, prejudice the safety or interests of the United Kingdom. The Government reject these amendments. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed would be inherently prejudicial to the safety or interests of the UK. I pause, as here lies at least some explanation to the noble Lord, Lord Pannick, who none of us want to see in the dock in Court 4 of the Old Bailey.

Creating an additional legal test to prove beyond reasonable doubt why that activity is prejudicial would add an unnecessary hurdle for a prosecution. The noble Lord, Lord Marks, asked why the Government are criminalising assisting a friendly foreign intelligence service in the case of Mossad. The noble Lord, Lord Pannick, and the noble Baroness, Lady Manningham-Buller, also dealt with this example. I would say that we are criminalising covert assistance and I highlight the additional safeguard of the public interest test in the prosecution. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed to would be inherently prejudicial.

We would be happy to consider further the point raised by the noble Lord, Lord Pannick, on the drafting of Clause 3, but need more information about that hypothetical situation. Who would counsel be advising and when? For example, is he advising a foreign intelligence service which has an agreement to operate in the UK? In those circumstances, the prosecutor’s options would of course be very different.

On Amendment 16, the existing distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, Clause 3(4) requires the conduct to be prejudicial to the safety or interests of the UK. This has been done to ensure that we target activity overseas which has an appropriate link to the United Kingdom. On this amendment, and Amendments 12 and 15, it is the Government’s view that activity taking place inside the UK, where not covered by the defences in Clause 3(7) and without even informal agreement or consent, is inherently prejudicial to the UK’s safety or interests.

As I understood the example from the noble Baroness, Lady Ludford, of a French citizen working in a bar or a bank, surely the answer is that they could simply call 999. I do not think there is any need to tighten up the definition in the context of the example she gave. In further response to the points the noble Baroness raised, I quote from paragraph 43 of the Government’s formal response to the JCHR report:

“Alerting a foreign intelligence service to a potential terrorist plot against the UK would not be conduct in relation to UK activities by that intelligence service. If the UK and France have an agreement to work on such activity together in the UK then that would fall under one of the defences available.”


Regarding Amendment 19, it is the Government’s view that an individual who knew, or reasonably ought to have known, that their conduct has a purpose that is prejudicial to the safety or interests of the United Kingdom should not be outside the scope of the offence simply by virtue of it not being the intention behind the activity to cause harm to the UK. To require the higher level of intention that this amendment seeks to introduce would create gaps that would jeopardise our ability to prevent harmful activity at the sensitive sites these provisions seek to protect. The Government consider it correct to penalise such conduct irrespective of the specific intention of the perpetrator, so long as they have, or should have, knowledge of the damage their action could cause. The Government therefore cannot accept the proposed amendment.

I will address Amendments 20 and 21 together, given that they both would add some variation of the safety or interests of the UK test to Clause 5. For the current Clause 5 offence to be committed, a person must engage in specified conduct in relation to a prohibited place that is unauthorised. They must know, or ought reasonably to know, that their conduct is unauthorised. This therefore protects those who have no reason to know that the activity they are conducting at that specific location is not authorised. There is no requirement to prove intent against the United Kingdom, as the offence is aimed at circumstances where activity is unauthorised but it cannot be established that a person had a purpose they knew, or reasonably ought to have known, was prejudicial to the safety or interests of the UK. For example, if a person trespasses on a site that they know is a prohibited place and steals something from it, that is not on the face of it damaging to the safety or interests of the UK. This is reflected in the lower maximum penalty for this offence of six months’ imprisonment.

The Government consider that including a further condition to prove that conduct is prejudicial to the safety, security or defence interests of the UK significantly reduces the utility of this offence and creates an unhelpful overlap with the Clause 4 offence. This would result in these provisions not being able to capture the full range of potentially harmful activity that prohibited places face. I add that it would seem clear that the innocent photographer taking pictures of RAF aircraft at an air show would not be caught by this offence for the reasons I have set out.

Amendment 47 would add an additional condition to the offence provided in Clause 15(1). The Government reject this amendment because it would create an additional and unnecessary evidential burden to overcome, severely limiting the efficacy of the offence at preventing hostile foreign intelligence activity against the UK. I suggest that no one would ever be prosecuted in the hypothetical situation advanced by the noble Lord, Lord Marks.

The effect of the amendment would be to require the person committing the offence to know, in all circumstances, what the foreign intelligence service intended to do through the provision of the relevant material benefit. Furthermore, the prosecution would be required to prove that knowledge in court on the basis of admissible evidence, which would be a difficult task.

Were this offence to be amended as suggested, it could be simply circumvented by the foreign intelligence service ensuring that the person who would otherwise commit the offence is not told what is intended. In such circumstances, conduct as set out in the offence as drafted would not be a crime. It is the Government’s view that a foreign intelligence service funding operations in the UK is inherently prejudicial to the safety or interests of the United Kingdom.

As to Amendment 49, noble Lords seek to include an additional element of intent as part of the preparatory conduct offence under Clause 16, through the addition of a provision requiring proof that persons engaged in preparatory conduct were acting with a purpose that they knew would prejudice the safety or security or defence of the United Kingdom. In the Government’s view it is unnecessary to include this additional element; if a person engages in preparatory conduct with the intention that it will lead to one or more such offences, the preparatory conduct offence will be committed only if the person has the intention that each element of those offences will be met in the future. I do not accept that the offence could be unintentionally committed in the manner postulated by the noble Baroness, Lady Jones.