National Security Bill

Lord Coaker Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I rise briefly to say that we very much support Amendment 51 in the name of the noble Lord, Lord Carlile; were he to push it to a vote, we would certainly support him in that Division.

I do not want to repeat much of what has been said by my noble friend Lady Hayter and the noble Lords, Lord Carlile, Lord Wallace, Lord Evans and Lord West. However, I think that the noble Lord, Lord Evans, was right to say that, although this is a modest amendment, its consequences are quite serious. There is no doubt that people are concerned about some of the issues that they have read about in the papers around foreign interference in elections and the funding of political parties. One of the things that we often debate in this House is confidence in our democracy and democratic system, including the threats to them and the erosion of that confidence. Sometimes, these may be small steps but they are important ones that can contribute in our trying to do all we can to protect our democracy. People are worried about foreign interference in elections and the integrity of our democratic system.

It is right to point out, as the noble Lord, Lord Evans, did, that, through this Bill, we are requiring significant steps to be taken by businesses, organisations, industry, financial services and all sorts of other bodies to ensure that they conform to certain regulations that protect our national security. It would be right for them to ask, “Why is there one rule for us but another for political parties?” It is quite right that this amendment is supported; I hope that the noble Lord, Lord Carlile, will seek to test the opinion of the House and that his amendment is supported by the majority of Members, because it is an important step in protecting the integrity of our democracy in the way that noble Lords, particularly my noble friend Lady Hayter on the Labour Benches, pointed out.

Having said that, I want to ask one practical question with respect to many of the amendments that the Government have brought forward, which, by and large, we support. I want to deal with Amendment 49, the explanatory statement for which says:

“This amendment adds to the definition of ‘political processes’ the activities of groups such as all party parliamentary groups.”


I understand the bit about all-party groups but the implication there is in “such as”. Are the Government saying that the amendment is relevant to other groups? If so, can the Minister explain that to us?

With that, as I say, I very much support Amendment 51 in the name of the noble Lord, Lord Carlile, because it is very important.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken on this group.

I will start, if I may, by addressing the question from the noble Lord, Lord West, by repeating something that I said in my opening speech; I think it goes some way to answering him. 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 in 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. I hope that answers his question.

In answer to the question from the noble Lord, Lord Coaker, about Amendment 49, let me say that he is completely right. The reference to

“the activities of an informal group”

in this amendment is, as I think noble Lords know, designed to capture interference activities in APPGs by foreign powers. We are seeking to capture interference whether or however any person participates in the activities of these informal groups. We expect that to cover MPs and people external to Parliament and government who participate in the actions of such groups, but we also envisage informal groups to include things such as “friends of” groups. The use of the term “acting in that capacity” ensures that we do not capture things such as parliamentary book clubs but instead focus on those caught, such as the 1922 Committee, although they could also be covered by the public functions limb of the test. I hope that clears this up.

I know that Amendment 51 is a duplicate of a previous amendment, now tabled by the noble Lord, Lord Carlile. The Government do not believe that this amendment is necessary, I am afraid. I was going to quote myself and say again that UK electoral law already sets out a stringent regime of controls, but I am slightly more reluctant to do so after hearing the comments from the noble Lord, Lord Evans. However, we believe that our regime ensures that only those with a genuine interest in UK elections can make political donations and that political donations are transparent.

I will go into more detail on this point, if I may, because I believe that the noble Lord’s ethical matrix is already in existence. It is already an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already report all donations over a certain value to the Electoral Commission; these are then published online for public scrutiny. Political parties are by law required to undertake reasonable steps to verify whether a donor is permissible and obtain their relevant details for the reporting requirements. Donations that do not meet the permissibility tests or are unidentifiable must be reported and returned to the Electoral Commission, which also produces guidance outlining how the recipient of a donation can undertake these checks.

As I say, UK electoral law already sets out a regime of donation and spending controls to safeguard the integrity of our democratic processes, so only those with a genuine interest in UK electoral events can make political donations; they include UK-registered electors, UK-registered companies, trade unions and other UK-based entities, as well as otherwise eligible donors such as Irish citizens who meet prescribed conditions and can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations that are not from a permissible or identifiable donor. The failure to return such a donation either to the donor or, as I just described, to the Electoral Commission within 30 days of receipt is an offence; any such donations must also be reported to the Electoral Commission. The Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.

The transparency of electoral funding is obviously a key cornerstone of the UK’s electoral system. All political parties recognise that third-party campaigners and candidates must record their election spending and report it to the Electoral Commission or their local returning officer; that information is publicly available. For transparency, all donations to political parties and campaigners must be recorded and certain donations must be reported to the Electoral Commission; as I said, these include donations from impermissible donors and donations from the same permissible source that amount to over £7,500 in one calendar year. To ensure transparency, donation reports are published online by the commission for public scrutiny.

To register as an overseas elector, a British citizen has to present ID. However, it is a long-standing principle first introduced by the Committee on Standards in Public Life in 1998 that, if you are eligible to vote for a party in an election, you are also eligible to donate to that party. We believe that overseas electors are important participants in our democracy, but it is only right that they should be able to spend in UK elections in the same way as other UK citizens registered on the electoral roll.

I think that this is a reasonably comprehensive set of rules. There may be some debate as to whether it qualifies as a stringent regime but the fact is that donations to political parties from foreign powers, whether they are made directly or through an intermediary, are illegal. Political parties already have a legal duty to check that all donations they are offered are permissible.

In closing, I very much thank noble Lords for engaging so constructively in this debate. I ask the noble Lord, Lord Carlile, not to press his amendment in this group and ask noble Lords to support the Government’s amendments.

--- Later in debate ---

[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.

[Lord Coaker (Lab)]

My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.

The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.

My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.

I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.

A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.

[Lord Beith (LD)]

I put it to the noble Lord that this is not a formality. The point of the Prime Minister meeting the committee is that it can draw attention to failings or problems that it cannot publicly disclose. The only route by which those failings or problems can be brought to account is by direct contact with the Prime Minister.

[Lord Coaker (Lab)]

I could not agree more with the noble Lord, and that is why it is so incredible that no Prime Minister has discussed that with the committee since 2014. I say this in relation to my noble friend Lord West’s points about the failure of discussion and people’s failure to involve the committee at an early stage. Had that been done, we would have avoided much of the debate and controversy over Clause 30 or, now, government Amendment 66. My noble friend Lord West mentioned this on behalf of the committee, and I mentioned and highlighted yet again the failure of the Prime Minister to meet it since 2014, which is simply and utterly unacceptable. Something needs to be done about it, and the Prime Minister needs to hear this—I know that the Minister will take this forward.

This is a really serious matter. I could not believe it when I read it, and I do not believe that many noble Lords here would either, as the noble Lord, Lord Beith, reminded us. According to the report, this was a regular occurrence:

“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work”.


But, despite repeated requests for suitable dates, we are yet to receive a response. This is unacceptable, and it is why we get the sort of situation that we had with Clause 30.

Notwithstanding that, I thank the noble Lord the Minister and the Armed Forces Minister for their engagement in bringing forward Amendment 66, which is a considerable improvement on what went before. I note the change from automatic exemption to the reasonableness defence. No doubt the Minister can address the issues and questions that my noble friend Lord West raised on proportionality and other areas. It is important that the point of the noble Lord, Lord Anderson, is also addressed. With that, we welcome Amendment 66, but we also look forward to the reassurances that my noble friend Lord West seeks on behalf of the Intelligence and Security Committee.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who spoke in this debate on Clause 30, the Serious Crime Act 2007 amendment. Before getting into the detail, I very much thank the noble Lords, Lord Beith, Lord West, Lord Ponsonby and Lord Purvis, and the noble Baroness, Lady D’Souza, for their amendments tabled in advance of today’s proceedings. I also thank the noble Lords, Lord Anderson and Lord Carlile, who have consistently shared their time and expertise with me and my team, across a range of national security matters.

I also extend my gratitude to the Intelligence and Security Committee, which recently took the time to write to the Home Office on this measure and cast a keen and critical eye, with officials, over the Government’s amendment tabled for today. I carefully noted the comments of the noble Lord, Lord West, as did my right honourable friend the Security Minister, who sat on the steps when he made them. I will obviously make sure that we reflect on that internally. I say to the noble Lord, Lord Coaker, that my noble friend the Leader of the House heard his comments, and I am sure he will reflect them back to the Prime Minister, but I am not responsible for the Prime Minister’s diary, so I cannot go further than that at this point. However, we will return to this subject in group 12, when the ISC MoU will be debated.

The Government’s shift in approach on the SCA amendment reflects our maintained commitment to ensuring that individuals working for UKIC and the Armed Forces are protected when conducting their proper activities in service to this country. The Government’s amendment replaces Clause 30 with a new clause that provides a defence for acts that are offences under Part 2 of the SCA by virtue of the extraterritorial provisions in Schedule 4. This defence would apply to those carrying out the functions of UKIC and the Armed Forces in supporting activities overseas; that is, it will be a defence for a person to show that their act was necessary for the proper exercise of a function of an intelligence service or the Armed Forces. I will shortly go into more detail on the Armed Forces, at the behest of my noble friend from the Ministry of Defence, so please bear with me.

As noble Lords will be aware, the current reasonableness defence in Section 50 of the SCA would cover encouraging or assisting crimes domestically. We believe that it is right that this new defence is limited to where UKIC and the Armed Forces are supporting activity overseas. The territorial applicability of this measure is identical to that of the original clause. This is because the acute issue caused by the SCA offences, and therefore justification for this amendment as presented to the ISC, relates to support to key international partners’ activity overseas.

The defence provides UKIC and the Armed Forces with more reassurance than the current reasonableness defence, in that the defence is based around the proper exercise of the functions of UKIC and the Armed Forces, rather than the more subjective requirement of proving “reasonableness”. We must remember that the tasks we ask these individuals to undertake, and the operational arrangements we have with our international partners, are ever more complex.

We still do not think it is appropriate that a potentially junior member of the agency or Armed Forces should be faced with the legal burden of proving that their activities were reasonable. Instead, the new defence imposes an evidential burden of proof on the individual to raise the defence. Once the defence has been raised, the legal burden would be on the prosecution to disprove it. It must be remembered that this amendment does not change the position for an individual who acts outside of those proper functions; they would remain liable for any wrongful acts. I believe that this strikes the right balance of providing appropriate protection while also having a clear route by which there can be proper legal consideration of any potential wrongdoing.

Noble Lords will now see an explicit responsibility on the heads of agencies and the Defence Council to ensure that their respective organisations have in place arrangements designed to ensure that acts of a member of their service that would otherwise be an offence under the SCA by virtue of Schedule 4 are necessary for the proper exercise of their functions. To be clear, that means that an act could not be considered within the “proper” exercise of a function of an intelligence service if it does not comply with the “arrangements” set by the relevant heads or the Defence Council.

In addition, 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. 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—