National Security Bill

Lord Faulks Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[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—

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, I had two points to make, the first of which, about foreign power, has just been made by the noble Lord, Lord Macdonald, so I will not repeat it. The second is more of a question. The noble Baroness, Lady Ludford, asked, “Why not charge theft?” I have no doubt that I will be advised by the Minister, but is there not a requirement that you have to deprive somebody permanently of something to constitute the offence of theft? I can see some potential argument that somebody charged under that offence would say that they had no intention to deprive that person permanently of that information.

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

My Lords, I have not yet spoken to Amendments 9 and 10, which I was proposing to do before my noble friend spoke for us. Before doing so, I join my noble friend Lady Ludford in opposing the protection of all trade secrets without any requirement for there to be prejudice to the interests of the United Kingdom. That amendment, which has been proposed on behalf of the JCHR, seems to me to be sensible. I also share her bemusement, and that of others, that trade secrets are included in the Bill, because the way in which they are included is extremely wide.

The noble Lord, Lord Pannick, has pointed out that Clause 2(2)(b)—he read it aloud, but I will not repeat doing so—is so wide that it effectively covers any information which has any commercial value of any significance. Of course, that information is important, and, to that extent, I accept the points made by the noble Lord, Lord Carlile. However, state actors may also steal, or act nefariously in respect of, trade secrets—as may others, be they state actors or not. They may be from the United Kingdom or abroad. They may be connected to national security, but if the Bill will deal with trade secrets, they need to be defined in such a way that it is confined to trade secrets that present a threat to national security. The Bill goes far too wide if we include wide threats to trade secrets in the criminal proceedings—which, as my noble friend Lady Ludford said, carry very heavy sentences—without the need to prove the threat to national security as an element of the criminal offence. As the noble Lord, Lord Pannick, said, threats to trade secrets are normally dealt with in the civil courts, where the protection to intellectual property is customarily and very frequently dealt with every day.

It is absolutely right, as the noble Lord, Lord Macdonald of River Glaven, pointed out, that there is a requirement that the foreign power condition must be met. However, the foreign power condition in Clause 29 is not a very difficult hurdle to surmount. The present drafting does not require any prejudice to the security, defence or other interests of the United Kingdom. It is met if conduct is carried out not by a state Government but by any entity controlled or financially assisted by a foreign power—so that could be a commercial organisation that happened to be state-controlled. For “foreign power”, we have to read that as any power or any other state, including any friendly Government from anywhere in the world.

Our Amendments 9 and 10 tighten up the wording on trade secrets in Clause 2, but only in a limited way: by requiring that a trade secret must be subject to measures to prevent it becoming generally known or available to rival experts in the field. We suggest that it is simply not satisfactory—