National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

50: Clause 16, page 15, line 25, at end insert—
“(iia) section 3 (assisting a foreign intelligence service);”Member's explanatory statement
This amendment is intended to probe the exclusion of offences under Clause 3 from the offence in Clause 16.

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

My Lords, this group of amendments simply raises two questions, which is why we put down two probing amendments. Clause 16 criminalises preparatory conduct for any offences under Clauses 1, 2, 4 or 12, but it does not cover preparatory conduct for offences under Clauses 3 or 5.

Clause 3, as noble Lords will know, is the offence of assisting a foreign intelligence service. It is not covered by the preparatory conduct offence, and we are simply at a loss to know why the Government deem it necessary to have an offence of preparatory conduct in relation to the protected information offence, the trade secret offence, the more serious of the two prohibited places offences and sabotage, but not in relation to assisting a foreign intelligence service. Can the Minister explain the Government’s thinking?

I do not believe that there is a need for a similar explanation for not criminalising preparatory conduct in relation to offences under Clauses 13 and 14, on foreign interference, or Clause 15, on obtaining benefits from a foreign intelligence service. That is because Clause 13 already covers preparatory conduct, because it refers to conduct or a course of conduct of which it, the conduct, forms part. Clauses 14 and 15 define the new offences in a way that states the criminal acts so tightly that they do not need a reference to preparatory conduct. Indeed, that would be inappropriate.

As for Clause 5, it may be that the reason for not making a separate offence of preparatory conduct for unauthorised entry to a prohibited place is that the Clause 5 offence is summary only and carries a maximum sentence of six months’ imprisonment. It may have been thought that preparatory conduct for such an offence was likely to be fairly nonspecific anyway. If the Government have other reasons for excluding Clause 5 from the ambit of the preparatory conduct clause, please may we know what they are? These are probing amendments, but I beg to move.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, Amendments 50 and 51 seek to expand the preparatory conduct offence by adding the assisting a foreign intelligence service or FIS offence, Clause 3, and the unauthorised entry to a prohibited place offence, Clause 5, to the scope of the preparatory conduct offence.

The Committee will be aware that, under Clause 3, the first offence, in subsection (1), applies where a person engages in conduct that they intend will materially assist an FIS in carrying out UK-related activities. The second offence, under subsection (2), applies where a person engages in conduct that it is reasonably possible may materially assist an FIS in carrying out UK-related activities. The person engaging in this conduct has to know, or ought reasonably to know, that the conduct is of this kind. The type of activity that could be considered to be preparatory acts relating to assisting an FIS are already sufficiently covered by the second offence under subsection (2) and also by the offence of obtaining material benefits from a foreign intelligence service under Clause 15.

Clause 5 targets conduct in a prohibited place which is unauthorised. The offence targets lower-level activity, such as knowingly entering a prohibited place without authorisation. This offence does not therefore require a purpose prejudicial to the UK to be demonstrated. I remind noble Lords that the purpose of Clause 16 is to allow the most serious state threats activity to be disrupted at an early stage. It would be disproportionate to include the Clause 5 offence under the scope of the preparatory conduct offence, given that the offence does not require any proof of intent against the United Kingdom and accordingly carries a lower penalty. As such, we do not consider that the inclusion of these additional offences to the preparatory conduct offence is necessary or proportionate to achieve the aims of the offence.

I hope that that answers the questions put by the noble Lord, Lord Marks. The Government therefore do not find the amendment to be necessary, so I invite him to withdraw.

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

My Lords, the Minister’s response on Clause 5 was precisely in line with the possibility that I adumbrated, and he has confirmed that, so I shall withdraw that amendment without hesitation. Of course, I shall also not move the other amendment, because it needs further discussion. However, at the moment I do not understand how preparatory conduct is covered by Clause 3 at all. Perhaps we can discuss that behind the scenes between now and Report. On that basis, I beg leave to withdraw the amendment.

Amendment 50 withdrawn.

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[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, government Amendments 52 to 59 are minor and technical, and bring consistency across the police powers in the Bill by aligning Schedule 2 with equivalent provisions in Schedules 3 to 5.

The amendments serve several purposes. First, they ensure that applications made under Schedule 2 for production orders and explanation orders may be made without notice to a judge in chambers in England, Wales and Northern Ireland, or to a sheriff in chambers in Scotland. This means that, in cases where it could harm an investigation, an application may be made without notifying the defendant. For example, the police may require a production order to obtain evidence from a person suspected of preparing to conduct espionage. Notifying them of the application in advance may result in the destruction, concealment or alteration of that evidence.

Secondly, the amendments ensure that a production order made under paragraphs 3 or 4 of Schedule 2, or an explanation order made under paragraph 8, has effect as if it were an order of the court. This means that if a person fails to comply with the requirements of the order, they can be treated as being in contempt of court, which is a criminal offence punishable by up to two years’ imprisonment or an unlimited fine. Failing to comply with a production order or explanation order can impede a state threats investigation. To avoid damage to such an investigation, it is crucial that provision is made to hold to account those who choose to disregard these orders. This approach mirrors that of the account monitoring orders under Schedule 5 of the Bill and the equivalent production order power in terrorism legislation.

Finally, Amendments 56 and 57 simplify the way that the term “judge” is defined in Schedule 2, aligning it with the definition in Schedules 3 to 5. The amendments do not change the meaning or interpretation of “judge”; they just ensure the drafting is the same across the schedules.

I ask noble Lords to support the inclusion of these amendments.

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

My Lords, I am grateful to the Minister for that explanation. As he has explained, these amendments make provision for applications for production and explanation orders to be made without notice to a judge in chambers. The amendments also make it clear that the orders should take effect as if they were court orders, so that disobedience would be treated as contempt of court.

We of course accept that such orders should be sought and obtained without notice, where necessary; we would expect that, generally speaking, it would be so necessary, because, as I think the Minister pointed out, a warning that application was going to be made for such an order would encourage the persons holding the material to hide it or other evidence concerned or to concoct explanations and provide false support for such explanations. If the orders are made without notice, the person is caught unawares and the orders are more likely to be productive. We also accept that disobedience should be punishable as contempt of court, simply in order to give the orders teeth, which they ought to have.

However, I add one general point. These production and explanation orders are quite draconian in nature and represent a significant intrusion on privacy and liberty. We accept that the conditions set out in the Bill for making these orders are tightly drawn and that, if those conditions are met, the orders are justified. However, it is important—I am sure the Government accept this—that those applying for these orders, and judges scrutinising these applications, will need to be astute to ensure that the conditions set out in the legislation for the orders to be made are fully met.

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[Lord Coaker (Lab)]

What was Clause 23 has now become Clause 28, because of various changes made by amendments to the Bill. So my noble friend’s remarks will be perfectly in order when we get to Clause 28, but we are not there yet.

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

It might help the noble Lord to know that there are a number of amendments tabled to Clause 28, which is a controversial clause and will be debated on the first day of the new year, I suspect.

[Lord Hacking (Lab)]

I am very relieved to hear that, because I received this stunning brief which I thought, without necessarily understanding its contents, I should bring to noble Lords’ attention.

While I am on my feet, I shall just make one other observation which I think is important, relating to the size of the Bill and particularly the size of the schedules. The Bill is 65 pages long and the schedules stretch to 124 pages, which is very close to double the size of the Bill. I have spoken about this before on other Bills: there is a terrible disease now among those handling legislation, and we are included, which means that the legislation is of inordinate length. I draw the Committee’s attention to the Occupiers’ Liability Act 1957. That contains important provisions relating to landlords and the occupiers of their land. It stretches no more than 10 pages, and is readable in its entirety without having to take a magnifying glass.