National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

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

My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.

The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.

Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.

I begin with the amendments focusing on “ought reasonably to know”. The phrase was said to be unclear, with concerns raised that it could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly—who did not know but are told that they should have known. I would like to strongly emphasise that this is not the Government’s intention and we do not consider that the current formulation would be interpreted by the courts in this way. However, we have considered the concerns raised on this issue, particularly the useful contributions in Committee from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Marks. We agree that it would be helpful to clarify the meaning. These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known something.

I now turn to amendments which all relate to the offence of materially assisting a foreign intelligence service. The amendments that the Government have put forward update the offence provided for in Clause 3(2). These amendments are similar to the ones put forward in Committee by the noble Lord, Lord Marks. The effect of these amendments is that the wording

“it is reasonably possible may”

in both Clauses 3(2)(a) and (b) would be replaced with “is likely to”, which in this context we see as meaning a real possibility. In order to ensure consistency across the clause, Amendment 13 also updates the relevant wording in Clause 3(3).

The Government have tabled amendments in response to a point raised in Committee by the noble Lord, Lord Pannick. These would add protections for lawyers, ensuring that any genuine legal activity will not be captured under the Clause 3 offence in the Bill. I beg to move.

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

My Lords, I thank the Minister for the helpful explanation of the many government amendments in this group. I thank him and the Government also for the considerable movement they have made in response to criticisms made by me and many others at Second Reading and in Committee of the breadth of the offences under Part 1. We are very grateful to the Government for the comprehensive way in which they have listened to our criticisms and moved towards positions that we have taken.

In particular, the troublesome phrase “ought reasonably to know” has been clarified by the qualification that what a defendant ought reasonably to have known falls to be judged having regard to other facts known to that defendant. Furthermore, in Clause 3, as the Minister explained,

“conduct that it is reasonably possible may materially assist a foreign intelligence service”

becomes conduct that “is likely to” materially assist a foreign intelligence service.

I welcome the new strengthened review provisions introduced by the new clause proposed in Amendment 85, in place of the old Clause 56. These and other concessions in the amendments moved by the Government allay many of our concerns.

However, there is one area left untouched that we say is still completely wrong: the failure to tighten up the definition of the

“interests of the United Kingdom”.

That is the subject of our Amendments 2 and 3, and the corresponding amendments wherever the phrase

“safety or interests of the United Kingdom”

appears. I note the word “or”: the interests of the United Kingdom alone are enough to qualify. It is principally in support of those amendments that I speak now.

We are concerned about the interests of journalists, and that is the title of this group. I do not accept what the Minister said when he suggested that it was permissible to rely on the fact that journalists have not in the past been prosecuted under security legislation. That may as a matter of fact be true, but it is neither safe nor good legislative practice to rely on it without tightening up the legislation so as to prevent such prosecutions succeeding.

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Moved by

[Lord Marks of Henley-on-Thames]

4: Clause 1, page 1, line 13, at end insert—
“(1A) Section (Public interest defence) applies to any offence under this section.”Member’s explanatory statement
This amendment, and others in Lord Marks’ name, are connected to Lord Marks’ amendment after Clause 38 (Public interest defence) to apply a public interest defence to the offences under Clauses 1 to 5 of the Bill and to offences under Section 5(6) of the Official Secrets Act 1989.

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

My Lords, this group concerns the public interest defence which is contained in Amendment 79 in my name, and the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Garnier, to whom I am very grateful for their help, counsel and support. I am not sure that the noble Lord, Lord Pannick, has made it here so far because he is in court, but I expect him shortly, although he may not speak.

Our amendment would introduce a public interest defence to offences under Clauses 1 to 5 of the Bill, together with the amended Official Secrets Act defence, amended by Schedule 17 at paragraph 5. The group also contains associated amendments, together with Amendments 18A and 79A, tabled by the noble Lords, Lord Coaker and Lord Ponsonby.

Although, as discussed in the last group, the Government have made a number of welcome concessions since Committee in tightening up the offences set out in the Bill, there has been no concession on a public interest defence. That is despite the repeated strong calls in the press and elsewhere, from many quarters, for such a defence; and despite the fact that such a defence is available in our Five Eyes partners and that the Law Commission recommended one here in 2000, and so did the Joint Committee on Human Rights. Each expressed the view that the lack of such a defence risked our being in breach of Article 10 of the European Convention on Human Rights.

While the Government may not have moved, we have. Amendment 79 is significantly changed from the amendment I tabled in Committee, in large part to meet the reservations expressed on my amendment in that debate. First, the burden of proof has been changed. The amendment in Committee would have imposed the burden of proof on the prosecution to disprove the offence once it was raised, and to do so to the criminal standard of beyond reasonable doubt. Some noble Lords thought that this imposed on the Crown a burden that would be too difficult to discharge in a security-sensitive context. While I am doubtful that that is the case, I accept the point, and I also accept the difficulties of proving a negative. So our amendment now imposes the burden on the defence to prove its case on the balance of probabilities—the civil standard that is usually applied in these cases.

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

My Lords, I am very grateful to the Minister for his response to these amendments, but it has disclosed a very sharp distinction between those of us who believe that a public interest defence can do no harm and a great deal of good, and those who do not. We regard as a complete mischaracterisation of the public interest offence the suggestion that it is likely to encourage or enable espionage or other disclosures that would be damaging to the national interest. By way of contrast, we see the presence in this Bill of a proposed series of absolute offences—as discussed by the noble and learned Lord, Lord Garnier—where there is no defence for journalists, no defence for campaigners acting innocently, no let-out for whistleblowers and no protection for members of the public. We are concerned by a system that relies on perverse acquittals rather than acquittals according to law. Therefore, I beg to test the opinion of the House.

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

My Lords, I completely support what has been said by my noble friend Lord Wallace of Saltaire in moving our Amendment 75, in respect of the exclusion of NATO members from the definition of foreign power, for all the reasons he gave and that I gave in Committee.

Put shortly, we cannot see any valid reason for treating NATO members as foreign powers on the same basis as Russia, China, Iran and North Korea. We are tied to our NATO allies by a treaty which imposes binding mutual obligations of defence and support. I have considerable understanding for the concern and disappointment expressed in public and in the press by representatives of some friendly nations of that unflattering equivalence of treatment. Those feelings mentioned by my noble friend Lord Wallace are not helpful to British foreign policy or diplomacy.

I also cannot see why the Government would not regard it as positively helpful to have the power to add friendly nations to a list of countries that will not be regarded as foreign powers for the purposes of this legislation. It may be that the Government will conclude in due course, even if not now, that the inclusion of all friendly countries as foreign powers may be profoundly unhelpful to our national position. To have the power, if that transpires, to exclude countries from the definition by regulation, may be regarded then as thoroughly convenient. Why will the Government not accept the flexibility that this part of the amendment offers?

As to the exclusion of governing political parties from the definition of foreign powers, this was an amendment we moved in Committee and which we supported then, and support now, for many of the reasons mentioned by the noble Baroness, Lady Hayter, in support of Amendment 74. We see no basis for categorising all political parties that form any part of a foreign Government as foreign powers, as proposed in Clause 32(1)(e). It is unrealistic, it makes no sense and it is wrong in principle.

As the noble Baroness pointed out, this is the definition of foreign powers that governs the application of FIRS, as well as Part 1 and other parts of the Bill. It could cause all kinds of difficulties where there are coalition Governments, often without UK-style collective responsibility. It is also the case that political parties are themselves diffuse in their views and often divided. To equate all governing parties with the foreign powers in whose Government they take a part—often a small part—is, we say, profoundly misguided. Perhaps the Minister could explain how the Government justify treating even small coalition parties as the Governments of which they form a part?

[Lord Balfe (Con)]

My Lords, I think that this part of the Bill was drawn up by someone who had not travelled very widely. It really just does not make sense.

I speak particularly to Clause 32. I do not exactly spend all my time, but I do spend a good bit of it, talking to embassies in London, largely from European Union countries that I have known for some time. I also go to Brussels very regularly because I still have interests there. I meet many people from other parties and groups—for a time I was a member of the Belgian Christian Democrat party—and I wonder where this lands. Of course, in some countries—Belgium is one—you will always have a coalition; it moves around, but it is always there.

There are also many other groups—for instance, the Kangaroo Group in Strasbourg covers all of the European Union and exists to pull down barriers to trade. I am a member of that group still because it has a foreign membership category. What are we supposed to do? Incidentally, the Kangaroo Group was set up by Basil de Ferranti, a British Conservative—though it is now a long time since he has been with us. This is a bit of a mess.

I want to deal in particular with Germany, which has a long tradition of political foundations. It has the Konrad-Adenauer-Stiftung, which I do lectures for from time to time; I will be doing one later this month. It has the Friedrich-Ebert-Stiftung, which is the socialist, or social democrat, one. It has the Friedrich-Naumann-Stiftung, which is, if I remember rightly, the one from the liberal party, and it has the Heinrich-Böll-Stiftung from the Greens. They all engage in trying to hold international conferences and gatherings to put across their policies, and they also invite people like me, who are reasonably well known in Germany, to go and give lectures and talks to members of their Stiftung. Part of the reason for that is to educate their own citizens in overseas political practice; it is not all one-way. I think we have missed something out here.

The Minister will say that it will not mean this and it will not mean that, but other people have looked at this Bill and at the explanations. In particular, the German foundations have concluded, reading this draft law on entities acting on behalf of a foreign power—under the law, Germany is a foreign power; that is the definition —that, if they are to get money from their Stiftung to do any work in Britain, the Stiftung will have to satisfy the German Government that it is legitimate to accept and apply for that money.

According to the German lawyers, Clause 31(2)(c), which says that any work carried out

“with financial or other assistance provided by a foreign power for that purpose, or … in collaboration with, or with the agreement of, a foreign power”,

means that the Stiftungen will fall under the scope of the registration scheme. In other words, if the Stiftungen are to be able to operate and satisfy their funders, they will have to satisfy them about this clause in our legislation. This means that a German Stiftung—a political foundation—that receives German taxpayers’ money, or for that matter a cultural institute, Chamber of Commerce or any London-based NGO or think tank that receives money from Germany, is an agent of a foreign power and has to register, according to the definition, every single interaction with UK politicians or high-ranking officials within 28 days. They have described this as making their lives “impossible”. I say to the Minister that it is not what we say the law means; it is what it means to a lawyer, and in this case what it means to a German lawyer.

I cannot agree that the concept of “foreign principle” has been removed. It has been removed and replaced with “foreign power”, but this does not cover what is needed. The fact of the matter is that, in the Minister’s letter, he very carefully said:

“Foreign opposition parties are not classed as foreign powers (for example the French Socialist party).”


That is not the German interpretation of our law. The Minister can shrug his shoulders, but the sensible way forward would be to accept an amendment such as the one put down by the noble Lord, Lord Wallace, which makes it quite clear that these countries are not foreign powers for the purpose of this legislation. I invite the Minister to think carefully and come back at Third Reading with a much better definition. This general, catch-all “foreign powers” covers all of NATO but also, as has been mentioned, Australia, New Zealand and Canada. Where are we going? Please could the Minister think it out a bit better and clarify it, possibly along the lines of the amendment, but certainly so that the people we deal with every day, who are cheerfully telling me about the attitude of the British Government to the reconstruction of Ukraine—which is not quite what the British Government are saying but is what the diplomats are picking up—can continue to brief us and keep us on top of things?