National Security Bill

Lord Coaker Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Sharpe of Epsom]

My Lords, Section 41 of the Terrorism Act 2000—hereafter referred to as TACT —confers a power on a police officer to arrest a person whom they reasonably suspect to be a terrorist. Under Section 41, officers are able to detain someone before charging or releasing them. The Section 41 detention clock allows them to do so for a maximum period of up to 14 days. It is possible for a person to be arrested under Section 24 of PACE then subsequently rearrested under Section 41 of TACT. This might happen, for example, when information comes to light during the investigation indicating that the offence of which the individual is accused has a terrorist connection. Under the current position, the time spent in detention under Section 24 would, in theory, not be counted towards the initial 48-hour permissible period of detention under Section 41. Though counting this time is, in fact, current operational practice, the Government are clear of the need to codify this practice and ensure that the safeguard continues to apply in all future cases. This is what this amendment does, while aligning the power relating to foreign power threat activity contained in Part 1 of this Bill.

Schedule 5 to TACT contains a power under which an officer of at least the rank of superintendent may, by a written order, give to any constable the authority which may be given by a premises search warrant issued by the court for the purposes of a terrorist investigation. The authorising officer must have reasonable grounds for believing that the case is one of great national emergency and that immediate action is necessary. We are seeking to amend Schedule 5 to TACT to create an ex post factum judicial authorisation safeguard. This will require the police to apply to the court for a warrant in relation to any relevant confidential journalistic material seized during the search that they need to retain for the purposes of a terrorist investigation. In the interests of national security, it is right that confidential material should be accessible in cases where the police can show that the action is necessary, proportionate and satisfies the legal tests in these provisions, while pursuing a terrorist investigation.

However, the Government also recognise that press freedoms are extremely important. Therefore, when such material is seized during a search that has been authorised under this urgent procedure, it is right that a warrant must be sought from a judge for its continued retention, and that an application for retention can be ex post factum, after the search itself has taken place. This approach reflects recent case law and ensures that the provisions provide appropriate protection for journalists. This amendment will also align this aspect of Schedule 5 to TACT with the equivalent urgent premises search power found in Schedule 2 to this Bill.

I turn to Amendment 192, tabled by the noble Lord, Lord Coaker. This amendment seeks to impose on the Secretary of State a duty to implement the recommendations of the Intelligence and Security Committee’s report on Russia. As noble Lords will be aware, the Government published their response to the Russia report on the day the report itself was published, 21 July 2020. Although the report did not itself enumerate specific recommendations, all the recommendations that could be identified in the report were addressed in the government response. A majority of the ISC’s recommendations had already been implemented by the Government before the report was published—for example, those covering co-ordination of HMG’s Russia work, close working with international partners and continued exposition and attribution of malign Russian activity. The then Home Secretary reiterated this in a Statement made to the House on 17 January 2022.

The Government’s response made our approach to tackling the recommendations in the report clear. By introducing effective new tools and powers for the police and security and intelligence agencies, this Bill can rightly be seen as delivering on commitments that the Government made in their response. Noble Lords will also be aware that the Government implement the vast majority of all ISC recommendations. However, there may be occasions when, for reasons including national security, we may not be able to take forward specific recommendations. We do not consider further reporting nor this amendment necessary, given the actions that the Government have already taken in response to the report.

Amendment 193, also tabled by the noble Lord, Lord Coaker, seeks to impose a duty on the Prime Minister to update the memorandum of understanding between the Government and the Intelligence and Security Committee to reflect the changes to the Government’s intelligence and security activities as a result of the Bill. Section 3(2) of the Justice and Security Act 2013 already provides for the ISC to make reports

“as it considers appropriate concerning any aspect of its functions”.

That already gives the ISC the ability to report on matters that fall within its remit so far as is consistent with the MoU—for example, to seek to avoid duplicating the work of other committees. Amending the Bill as proposed might be taken to imply that the ISC required explicit legislative nomination to propose changes to the MoU in relation to changes in intelligence and security arrangements brought in by Bills, which is not the case.

I turn to the amendment tabled by the noble Lord, Lord Wallace of Saltaire. I am aware that there are concerns about how the now closed tier 1 investor route operated—in particular, concerns that the route was used by those relying on funds that had been illegitimately acquired and those who may have posed a wider risk to the UK’s national security. It was because of those concerns that we committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity, or being engaged in serious and organised crime.

The Statement of 12 January represents the Government’s substantive response to the commitment to undertake a review and publish our findings. I am aware that some noble Lords would have preferred that the published review had included more information about specific individuals. However, we have had to act responsibly with regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border, and the vital work of our law enforcement agencies.

I stress that this Government have already acted decisively regarding the risks posed by the tier 1 investor route to the UK’s national security when we closed the route on 17 February 2022. The Government have also been clear that any future visa programme in the investment space must operate on a fundamentally different premise from the previous one, with a far greater focus on skills and impacts, rather than just cash in the bank. I beg to move.

[Lord Coaker (Lab)]

My Lords, this is the first opportunity I have had to join other noble Lords in thanking the Minister for the various significant changes the Government have made to the National Security Bill and the improvement they have brought.

I shall speak to my Amendments 192 and 193. Again, I thank the Minister for his various amendments in this group, which are also an important step forward. I will leave the noble Lord, Lord Wallace, who has signed my Amendment 192, to speak to his Amendment 194.

Amendment 192 deals with the recommendations of the July 2020 ISC Russia report. The Minister has addressed some of those but I have one or two questions to ask him before I turn to Amendment 193, which is the real priority for me in this group. The report highlighted the fragmentation of the various bodies. The Minister has spoken about how the Government seek to address that, but we would all like to know how the supposed co-ordination of the government response to the Russia report is being monitored to ensure that it is taken forward, and that what the Government say about the need for co-ordination to tackle fragmentation is made a reality.

The report highlighted again the prominence of dodgy Russian money in London. The Government will say, quite rightly, that they have at last taken action on that. How is that progress being monitored, so that we know how effective it has been, particularly in light of Ukraine? Similarly, can the Government reassure us that the various threats to democratic processes that the report highlighted are being addressed? I do not intend to press Amendment 192 to a vote—I am really just asking about the progress made since the report was published. As the Minister said, the Government’s response was published on the same day, but the question is how we maintain the progress that we all want to see on the various issues raised.

I will try to be as brief as possible on Amendment 193. The ISC’s annual report, published on 13 December 2022, clearly laid out the need to update the memorandum of understanding. That is what my Amendment 193, on which I will test the opinion of the House, seeks to do: to update the MoU the ISC operates under to reflect the changes made by the Bill and those made over the last few years. The Minister himself referenced the various government departments that now have responsibility for different aspects of security and intelligence, a point I will come to in a moment.

Let us remember that the ISC was set up in 1994 to allow for greater parliamentary oversight of these important matters, while respecting the obvious need for national security—an issue brought into sharp focus by the excellent Saunders report on the horrific Manchester Arena attack. The current MoU is out of date. The commitment made by the Security Minister in 2013 during the passage of the Justice and Security Act—that the MoU is a live document that is easily changed—needs to be honoured.

Who oversees the increasing devolution to policy departments of intelligence and security activities? How can parliamentarians scrutinise those when only ISC members with the necessary security clearance can access classified information? The Select Committees supposedly tasked with these various oversight roles are not suitable for that reason, rather than for any reason of capability. They simply do not have the security clearance to look at classified information.

The following departments and bodies are mentioned in the Saunders recommendations: the Department for Education, the Crown Prosecution Service, the Law Commission, the Home Office and the Ministry of Justice—and that is the open part of the report; for obvious reasons, we will not know what is in the closed part. If the ISC oversees all this, as it is perhaps expected to do in light of the recommendations, how will that work with regard to the Department for Education and the various other departments?

Our committee says that the outdated MoU is a real problem, but the Government say it is not. The ISC says it is a problem, but the Government simply dismiss it and say it is not. Can the Minister explain how members of a Select Committee—let us use BEIS as an example—can oversee classified information that informs the work of a body they are responsible for if they cannot see that information? Pages 42 and 43 of the Intelligence and Security Committee annual report lists numerous departments that have various security and intelligence functions they are supposed to oversee, but they will not be able to see the classified information because they do not have the security clearance. The ISC itself cannot oversee this because that is not part of the memorandum of understanding under which it works.

The committee was told, as I said, that the Government do not feel bound by statements made by the Security Minister to Parliament in 2013. So what weight should we give to any Ministerial Statements the Minister makes if, in a few years’ time, the Government can simply say, “We don’t give any weight to what was said in 2013”? Parliamentary Statements by Ministers of the Crown are supposed to be justifications of policy. We all rely on them. Courts rely on them. Many amendments to this Bill were withdrawn earlier because of what the Minister said at the Dispatch Box and the reassurances he gave, yet the Government are saying that they no longer agree with the 2013 assurances given by then Security Minister, so they will ignore them. We are talking not about policy—I understand how policy works—but about process and the need to update it. As I say, that is very disappointing, to say the least.

--- Later in debate ---

Going on to the tier 1 visa scheme—

[Lord Coaker (Lab)]

Before the noble Lord moves on to a different amendment, can he answer my question? How can Select Committee members, who do not have the necessary security clearance, possibly look at and scrutinise classified material on Parliament’s behalf?

[Lord Sharpe of Epsom (Con)]

If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.

--- Later in debate ---

Moved by

[Lord Coaker]

193: After Clause 91, insert the following new Clause—
“Duty to update the Intelligence and Security Committee of Parliament's memorandum of understanding(1) The Prime Minister must ensure that the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee of Parliament (the “ISC”) under section 2 of the Justice and Security Act 2013 (the “MoU”) is revised to reflect any changes to the intelligence or security activities of His Majesty’s Government as a result of this Act.(2) Any revisions to the MoU under subsection (1) must be agreed between the Prime Minister and the ISC in accordance with the process set out in section 2 of the Justice and Security Act 2013.(3) Any engagement between the Prime Minister and the ISC relating to revisions to the MoU under subsection (1) must commence within the 6-month period beginning with the day on which this Act is passed.”Member's explanatory statement
This amendment ensures that the ISC’s Memorandum of Understanding is updated to reflect this Act.

[Lord Coaker (Lab)]

As I indicated, I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Coaker]

195: After Clause 91, insert the following new Clause—
“Proscription of organisations: hostile activity on behalf of another State(1) Within six months of this Act receiving Royal Assent, the Secretary of State must publish draft legislation establishing a process for the proscription of actors engaged in hostile activity within the meaning of paragraph 1(5) of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.(2) Such legislation must have reference to the existing proscription process as governed by section 3 of the Terrorism Act 2000 (proscription).”Member’s explanatory statement
This amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile activity on behalf of other states.

[Lord Coaker (Lab)]

My Lords, in moving Amendment 195, I will not speak at great length. The amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile state activity on behalf of other states, or indeed non- state organisations acting for a state or those who may act on their behalf.

I am moving this amendment to enable the Government to deal with any legislative problem in proscribing, among others, the Islamic Revolutionary Guard Corps, known as the IRGC. The Government will tell the Chamber and me that existing legislation can deal with it, so it is not a problem. So why is there a delay in proscribing the IRGC? If there is no problem with existing legislation, why are Foreign Office officials questioning, as reported in the Times and many other media outlets, how the IRGC can be defined as a terrorist organisation under existing legislation, given that it is a government agency, unlike most of the other groups on the list? Foreign Office officials are being reported in the media as saying that there is a problem with the legislation. The Home Office is saying—I presume this is what the Minister will say—that there is not. Where has that come from? Why is the Foreign Office briefing the media that the reason it is resisting the proscription of the IRGC is that it is not sure that existing legislation will be adequate to define the IRGC as a terrorist organisation because it is a government agency.

There is a problem here at the heart of government. My Amendment 195 seeks to say to the Government, “Here is a legislative vehicle by which you can plug a gap so that the concerns raised by the Foreign Office can be alleviated”. The Home Office and the Foreign Office cannot both be right. So we should pass the legislation as I have laid it out here. I have read—I was advised that this was the way to give the Government a vehicle to deal with any legislative problem in the proscription of the IRGC, as laid out by the Foreign Office—the various parts of the 2000 Act and the 2019 Schedule in front of me and, as much as I can read and understand them, I will have to take the Foreign Office’s word that it is because it is a government agency that there is a problem.

As I said, something is the matter here. It is the will of Parliament, as expressed time and again in this place and in the other place, that the IRGC should be proscribed, but the Government are unable to do it. Therefore, all of us should pass this amendment to get rid of the legislative barrier that the Foreign Office says stays in the way. I am not a legislative expert, but, if the Foreign Office says there is a problem, if I were in the Home Office, I would pass this amendment and call out the Foreign Office if I wanted to proscribe the IRGC. Perhaps the Minister can tell us whether the Government wish to proscribe the IRGC and whether there is a problem with the Foreign Office. Clearly there is; the Minister will not say there is, but there is.

We have seen an Iranian TV station in the UK forced to shut down because of activity from Iran. Numerous plots have been foiled, thanks to our security services. The noble Lord, Lord Evans, is here, and the noble Baroness, both former heads of MI5, so we thank them. But the Government are prevaricating on the proscription of the IRGC. My amendment, as I said, seeks to help the Home Office in its disagreement with the Foreign Office by allowing the creation of an improved and clearer process for proscribing hostile state actors.

The Government are divided in the face of this worrying issue. The Government will say they are not, so I was looking for evidence to show that they were. What did I find? In Hansard, Bob Blackman MP—not me trying to create trouble in the Lords but a Conservative MP—said:

“Clearly, the threat from the IRGC to people in this country—be they opposition journalists reporting on what is going on in Iran at the moment or UK citizens—is paramount. Foreign Office Ministers have responded to all the urgent questions the Speaker has granted and the debates we have had, but will my right hon. Friend now take the obvious step, which is supported by all political parties in the Chamber, and proscribe the IRGC in its entirety?”


Tom Tugendhat, Minister, Home Office, responds with this direct quote:

“My hon. Friend will know that it is not me”—


I am quoting this—

“he has to persuade in this matter and that there are many areas where I would like to go. I can assure him that the Government are absolutely listening to exactly what he is saying. The Home Secretary and I are as one on this”.—[Official Report, Commons, 6/2/23; col. 639.]

I am not a genius at working out what that means, but I think anybody who has been in the other Chamber or in this Chamber and has listened to the debate knows that the National Security Minister is telling Bob Blackman MP that the Home Secretary and he agree that the IRGC should be proscribed, but they have a problem with other parts of government, and those other parts of government are the Foreign Office, which believes that it should keep open communication with Iran and that proscribing the IRGC will cause all sorts of other problems, presumably around the nuclear treaty and so on and so forth.

All I am saying to the Minister is that the Foreign Office is clearly blocking the proscription of the IRGC, which is what the majority of people in this Chamber and the other think should happen, and my amendment seeks to take away from it the excuse it is using: namely, that there is a legislative problem, because the IRGC is a government agency and it would therefore be difficult under existing legislation to define it as a terrorist organisation.

Amendment 195 is extremely important, because it will allow the proscription of the IRGC and will take away from the Foreign Office the excuse that it is using to block that proscription. It is in the national security interests of this country for the IRGC to be proscribed as soon as possible. From what I just quoted, it is obvious that the Government, defined as the Home Office, agree, but the Foreign Office is stopping it. This Chamber has the opportunity, in the vote on my Amendment 195, to take away the excuse that the Foreign Office is using to stop that proscription. I hope that noble Lords will take it.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the noble Lord, Lord Coaker, for bringing this issue to the Chamber on Report. He asked very pertinent questions. If he seeks to test the opinion of the House, we shall abstain on this point, but that is not because we do not wish to hear the Minister’s answer—it is because, if we are reforming the Terrorism Act 2000 and the means by which we proscribe organisations, there are perhaps better places for a full and more fundamental review.

I have been on record as supporting the proscription of the IRGC, and I have said that this should not be done without considering the knock-on effects within Iraq and Lebanon. The Terrorism Act 2000 states that it is the Home Secretary who has the specific power to proscribe, so the questions that the noble Lord, Lord Coaker, asked are valid. If this is a Home Office Minister stating that to the House of Commons and it is the Home Secretary’s decision, what is the process by which government will now make decisions on this? I have also repeatedly called for the proscription of the Wagner Group, which is a non-government organisation but clearly has direct links with the Russian Government.

There are, of course, some grey areas. Before we reached this group, I reviewed the whole list of those proscribed organisations, and we have recently proscribed some that are clearly not linked with a Government but are organisations designed to destabilise that country’s Government. However, over the years, there have been other organisations where the lines are more blurred as to whether they are within the framework of aliases or associated organisations, which can be proscribed under the Terrorism Act 2000, even if they are not directly part of the Government of that nation. It is obviously a large step if we proscribe part of a Government, but, in the past, we have seen that, in many areas, it has not been clear who the Government of a country are. Therefore, the statutory tests that are used, and that need to be satisfied, need to be robust.

I have raised the issue of the Wagner Group since 25 April last year, and I have seen it operating with my own eyes in Sudan—some noble Lords have heard me make this case before—and it is palpably the case that its operations are terrorist in purpose and in nature and that they are directly against the national security interests of the United Kingdom and pose a threat to British nationals and our allies. I called for its proscription last year on 25 April, 23 May, 9 June, 7 July, 15 November and 21 December, and on 26 January this year.

--- Later in debate ---

[Lord Coaker (Lab)]

I thank the noble Lord for his response. Of course the Government are carefully considering this. I do not for one moment believe that they are not thinking about or carefully considering it—that would be an insult to the British Government. Of course they are concerned about national security and worried about various issues, including the one before us. That is a given. I have never accused the Government of not being concerned about it, of not considering it, of not deliberating on it, of not thinking about what they should do.

My amendment is saying that there is a real problem at the heart of government because the Foreign Office is blocking what the Home Office wants to do. There was not a word about that from the Minister; not a word about the fact that the Foreign Office is saying, “You cannot use existing legislation because it means that the IRGC”, to use that as an example, “is a government agency and not within the definition of a terrorist organisation under the legislation as drafted”. That is the core of it.

The noble Lords, Lord Leigh, Lord Polak, Lord Alton, and others who have spoken are saying that if there is a legislative problem, which the Foreign Office thinks there is, sort it out or come before this Chamber and say, “We do not want to proscribe the IRGC. We do not want to take that sort of action”. It is a perfectly reasonable thing to argue. “We do not want to proscribe the IRGC because we think the better way of sorting this problem out is to maintain open communications with the Iranian regime, to talk to them, to embrace them. We are not going to take any hard action against them because we think that undermines the policy objectives of the British Government.” It is a perfectly reasonable policy position, but I do not think that that is what is going on. I think the Government are having a row. I think there is a clash between the Foreign Office and the Home Office, and I am on the side of the Home Office. The IRGC should be proscribed, and I think that is what the majority of people in this Chamber, and in the other place, think. If so, it is the Government—or part of the Government—who are the problem, and my Amendment 195 gives them a legislative vehicle to sort it out.

What sort of a response is it, on something as serious as this, to say it is a drafting problem and “I did my best with it”? If there is a drafting problem, the Government can accept it and sort it out. They can change it, bringing in their battalions of lawyers, barristers even—I apologise to the noble Lord, Lord Pannick—to sort it out. I was a teacher; I played football; I was a politician; I am not a lawyer, but that was the best I could do, because I know how important this is. The IRGC is operating within this country, to the extent that MI5 and others are having to foil terrorist plots. It forced a TV station to shut down, and the Government’s reaction to my amendment is to say, “There is a drafting problem with it”. It really is not acceptable.

The noble Lord, Lord Evans, is right in saying that there is a balance to be struck. Well, strike a balance by accepting Amendment 195, sorting the legislation out and allowing the will of this Parliament to be expressed through its directly and properly elected Government. It is saying to the Government that the IRGC is simply and utterly unacceptable. I do not care if the legislation says there is a problem with defining it. It is a terrorist organisation. “No, it is not”, because Schedule 58 to some Act somewhere says it is not. That is ridiculous. It is the tail wagging the dog. The IRGC is causing damage in our society and the Foreign Office is blocking this, according to the Times and other media outlets, because its officials are saying there is a definition problem because it is a government agency.

The noble Lord, Lord Evans, is right that this takes us into new territory. It does, and there are problems, but all I am saying is that it cannot be an excuse for the British Government to say, “We are not going to proscribe the IRGC because the Foreign Office says there is a problem with it being defined as a terrorist organisation when it is a government agency”. What do we say to people? Bring it down from these heady clouds of the House of Lords Chamber. Bring it down to the fact that terrorist plots are having to be foiled by our security services because of its actions. An international Iranian TV station has been forced out of our country: the United Kingdom cannot guarantee the safety of people who work for a TV station, in the face of actions by the IRGC and the people who support it, and the British Government prevaricate on whether to proscribe it. It is unbelievable.

The Government are whipping their Members to vote against that proscription and the Liberal Democrats, for their own reasons, are going to abstain. So, we are going to have people voting against and abstaining on the proscription of a body that poses a very real threat to our country. Good luck with explaining that. Good luck with explaining to people why that is something Parliament should accept and why my amendment should fail. “A drafting error”. “Not properly written”. Goodness me, is that the best we can do? I wish to test the opinion of the House.