National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.

His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have

“damaging consequences if lost, stolen or published in the media”

but is

“not subject to a heightened threat profile.”

The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.

As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.

Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.

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

My Lords, I thank all noble Lords, and the noble Baroness, for their contributions to this short debate. I also thank the Joint Committee on Human Rights for its report and its close scrutiny of the Bill. I take the opportunity to confirm that the Government’s response has been published today, and I have asked for a copy to be placed in the Library of the House.

The Government consider that limiting what can be captured under “protected information” to specific security classifications, as the noble Baroness’s amendment seeks to, risks creating loopholes within the provision that could significantly undermine the operational utility of the offence. There are already limits to what “protected information” covers: protected information is any information, document or other article, where, for the purpose of protecting the UK’s safety or interests, access to it is restricted, or it is reasonable to expect that access would be restricted. I therefore suggest that there lies the answer to the question posed by the noble Lord, Lord Ponsonby. Moreover, the current definition of protected information would cover instances where information may have been misclassified but would still be extremely harmful if shared widely.

In contrast to the proposed amendment, the current definition of protected information also includes instances where seemingly less sensitive unclassified information or lower-classification information from within a government building or on a government computer system was obtained but could undermine the safety of the United Kingdom if disclosed to a hostile actor.

To answer the question asked by the noble Lord, Lord Marks, this could include the floor plans of a government building or even an organisational chart of a team working within that building. There are many examples of official documents at lower classification levels that may also be harmful if disclosed, such as information about a UK trade deal with another country. It is imperative that this breadth of information is also covered within the definition.

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[Lord Purvis of Tweed (LD)]

The “foreign power” test, which we will come on to later in the Bill, is extremely broad. Under Clauses 29 and 30, the “foreign power” test can cover the public service broadcaster of Canada. So, if someone who believes that our Government are committing wrongdoing provides a document to the public broadcaster in Canada because they believe that our Government are doing wrong, which is in the global interest, would that be covered, with potential life imprisonment, under this Bill?

[Lord Murray of Blidworth (Con)]

It would be the case only if those three tests that I have just described are met for the purposes of the offence in the Bill. So it would have to be that the information was protected, that the person ought reasonably to know that, and that its disclosure was prejudicial to the safety or interests of the UK. I imagine that will be the topic of some debate in the context of the hypothetical example that the noble Lord mentioned. It also has to be done with the intention to benefit a foreign power. I cannot see that, in the hypothetical situation the noble Lord mentioned, that issue realistically would arise because the combination of these tests means not only is the proposed offence proportionate but an appropriately high bar has to be met to bring a prosecution under this clause. The Government therefore consider that the definition of protected information is justified and cannot accept the proposed amendments. I invite the noble Baroness, Lady Ludford, to withdraw her amendment.

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

Following up on my noble friend Lord Purvis’s question, would it not probably be in the interests of Canada in the example he gave to expose wrongdoing on the part of the Government of the United Kingdom? The Government of the United Kingdom might define the interests of the United Kingdom in accordance with government policy in a way which was inimical to the interests of Canada and the offence would still be committed.

[Lord Murray of Blidworth (Con)]

I find the hypothetical example that the noble Lord postulates hard to follow, because it seems difficult to envisage a situation where a prosecutor could conclude in those circumstances that there was a prejudice to the Government of the United Kingdom and a benefit to the Government of Canada, and that the other elements were present. It seems a most unlikely scenario.

[Lord Purvis of Tweed (LD)]

I would just like to make sure the Minister is very clear with the Committee. All the decisions that would take place would have to have an objective view that that foreign power benefits. But in my reading, the Bill does not state that. It is simply that providing information to an authority of a foreign Government, which could be a public sector broadcaster such as CBC, is under this Bill. No one has to make the decision that that public broadcaster is then seeking to benefit the Canadian Government. That is not in this Bill.

[Lord Murray of Blidworth (Con)]

It is the intention to benefit that foreign power that is in this Bill, and it seems to me that that is a sufficiently clear and adequate definition to afford protection under the proposed section.

[Baroness Ludford (LD)]

My Lords, I was just looking up to see whether the words “intended to benefit a foreign power” were actually in the Bill, but I did not have time. In skimming through, I did not see them.

The Minister’s response has not really reassured me. The lack of definition of “interests of the UK”, with a question mark over what that means and how you could conflate the interests of the country and the interests of the current Government, coupled with the potentially wide definition of “restricted”, suggests, to myself and my noble friends on these Benches at least, a lack of precision and an opportunity that is too wide, especially considering that the penalty that could be faced is life imprisonment. Surely, there is an onus on us to secure a tight definition of offences in this Bill.

The other missing element, which we will come to in further discussions, is the lack of a public interest defence or a whistleblowing defence. What we are facing here is considerable uncertainty about what the real scope of the offence could be. As my noble friend Lord Marks said, the term “restricted in any way” is so undefined, it could cover innocuous but controversial documents, which could be restricted to prevent embarrassment. That is the discussion we keep having on journalism and whistleblowing: we should not open the door to the criminalisation of obtaining or publishing material that could be embarrassing to the ruling party.

I scribbled some notes, but I am afraid I cannot remember which noble Lord made this point. I think it was the noble Lord, Lord Anderson. How are we meant to know what non-classified information is protected? It could apply to anything, however innocent, that was not published. If the Government have a document that they regard as restricted, even though it is not classified, the fact that it has not been published would mean it was restricted, although it may not be damaging except possibly to the reputations of the Government or Ministers.

If I were to get hold of a document saying that a Bill—for the sake of plucking something out of the air, let us say the Northern Ireland Protocol Bill—is designed to assuage some elements of political opinion in the party in power but is highly damaging to the diplomatic and economic interests of the United Kingdom, would that fall within the terms of the offence under Clause 1? In those circumstances, what is the nature of the restriction? What is the harm committed and what is the test of UK interests?

We keep coming back to the considerable grey areas in this whole package around Clause 1 and other clauses. I think we will want to explore this matter further. Otherwise, we are driving a coach and horses through the exercise of freedom of expression and other rights under the European Convention on Human Rights, which for the time being the UK is still a party to.

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[Lord Coaker (Lab)]

My Lords, we all hope that the noble Lord, Lord Pannick, will not be criminalised by this Bill, but we look forward to the Minister’s response and for the exemptions to which the noble Lord referred to cover him.

I want to make a couple of brief remarks, again supporting what the noble Lord, Lord Marks, is trying to do, which is to narrow the focus—that has been the subject of much of the debates have had on the various amendments. This amendment would require an intention that the conduct will prejudice the safety or security or defence interests of the United Kingdom and apply that to a number of clauses. The noble Lord, Lord Marks, has outlined quite adequately why a discussion about that and a decision for the Government are needed. I hope that the Minister will explain why the Government do not think it is necessary rather than just dismissing it.

I wanted something to be clarified, notwithstanding the fact that it may be a simple response. On visiting many military bases, one finds people outside them taking photographs and numbers and watching the activity because it is a pastime; it is something that is of interest to them. I do not think that the Bill will criminalise that, but on behalf of people who have an interest in something that I personally would not have an interest in doing, I wonder whether the Minister could clarify it. I have seen people taking photographs at RAF bases of the planes taking off. It is simply something of interest to them. It would be helpful for the Minister to clarify that they would not be caught by the Bill, even if unintentionally.

The noble Baroness, Lady Jones, was right to remind us about intention. It is important. We will come to the public interest debate later, but she referred to journalists and whistleblowers, who risk being criminalised even though their intention is not to undermine national security. That will take us to the public interest defence debate that we will get to later in the Bill.

In answer to the points and amendments from the noble Baroness, Lady Ludford, I think that the JCHR amendments—whether or not they are all right, and we heard a debate earlier on about them—are really important for the JCHR to have put before the Committee. What it is essentially saying is, “We think this is possibly something which impacts on the freedoms that we enjoy in our democracy”, freedom of expression being the one that the noble Baroness just referred to. The Government seek to modernise the national security law, which we all agree with—there is no disagreement in the Committee about that—but the noble Baroness, Lady Ludford, should not apologise for the JCHR; rather, we should congratulate it on coming to all of us and asking us to justify what we are doing and on asking the Government to justify what they are doing in the name of national security. There is a compromise to be made sometimes between national security and complete freedom to do X, Y or Z. All of us accept that. The debate, as we heard on earlier amendments, is where you draw the line. I, and other noble Lords, think it is important—whether in respect of this group or others—that a debate takes place in this Parliament, and we should attempt to do better at defining what we actually mean rather than just leaving it to the courts.

I say to the noble Baronesses, Lady Ludford and Lady Jones, and to others who continually remind us about the JCHR that I am sure it is sometimes immensely irritating to the Government, but that is the job. That, in a non-flippant way, is important, because there are compromises with freedom of expression, freedom of association, freedom to do X, Y or Z, and freedom for people to go about doing things exactly how they want to. It is a price we pay for our national security; how high that price should be is something we should not flinch from debating in this House.

The amendments from the noble Lord, Lord Marks, seek to put intent into these offences. If the Government do not believe that is important, it is necessary to argue the case as to why. On whistleblowers, journalistic freedom and so on, which the noble Baroness, Lady Jones, mentioned, I am sure we will come to that debate later when we discuss the public interest defence. I finish by saying again to the noble Baroness, Lady Ludford: more power to your elbow.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for another very interesting short debate. These amendments seek to amend or add a safety or interests test to the various offences throughout the Bill. I will address each offence separately, given the different effect each amendment will have on each offence.

Amendments 12, 15 and 16 would narrow the scope of the offence of assisting a foreign intelligence service, so that the offences would apply only to assistance that would, or is intended to, prejudice the safety or interests of the United Kingdom. The Government reject these amendments. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed would be inherently prejudicial to the safety or interests of the UK. I pause, as here lies at least some explanation to the noble Lord, Lord Pannick, who none of us want to see in the dock in Court 4 of the Old Bailey.

Creating an additional legal test to prove beyond reasonable doubt why that activity is prejudicial would add an unnecessary hurdle for a prosecution. The noble Lord, Lord Marks, asked why the Government are criminalising assisting a friendly foreign intelligence service in the case of Mossad. The noble Lord, Lord Pannick, and the noble Baroness, Lady Manningham-Buller, also dealt with this example. I would say that we are criminalising covert assistance and I highlight the additional safeguard of the public interest test in the prosecution. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed to would be inherently prejudicial.

We would be happy to consider further the point raised by the noble Lord, Lord Pannick, on the drafting of Clause 3, but need more information about that hypothetical situation. Who would counsel be advising and when? For example, is he advising a foreign intelligence service which has an agreement to operate in the UK? In those circumstances, the prosecutor’s options would of course be very different.

On Amendment 16, the existing distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, Clause 3(4) requires the conduct to be prejudicial to the safety or interests of the UK. This has been done to ensure that we target activity overseas which has an appropriate link to the United Kingdom. On this amendment, and Amendments 12 and 15, it is the Government’s view that activity taking place inside the UK, where not covered by the defences in Clause 3(7) and without even informal agreement or consent, is inherently prejudicial to the UK’s safety or interests.

As I understood the example from the noble Baroness, Lady Ludford, of a French citizen working in a bar or a bank, surely the answer is that they could simply call 999. I do not think there is any need to tighten up the definition in the context of the example she gave. In further response to the points the noble Baroness raised, I quote from paragraph 43 of the Government’s formal response to the JCHR report:

“Alerting a foreign intelligence service to a potential terrorist plot against the UK would not be conduct in relation to UK activities by that intelligence service. If the UK and France have an agreement to work on such activity together in the UK then that would fall under one of the defences available.”


Regarding Amendment 19, it is the Government’s view that an individual who knew, or reasonably ought to have known, that their conduct has a purpose that is prejudicial to the safety or interests of the United Kingdom should not be outside the scope of the offence simply by virtue of it not being the intention behind the activity to cause harm to the UK. To require the higher level of intention that this amendment seeks to introduce would create gaps that would jeopardise our ability to prevent harmful activity at the sensitive sites these provisions seek to protect. The Government consider it correct to penalise such conduct irrespective of the specific intention of the perpetrator, so long as they have, or should have, knowledge of the damage their action could cause. The Government therefore cannot accept the proposed amendment.

I will address Amendments 20 and 21 together, given that they both would add some variation of the safety or interests of the UK test to Clause 5. For the current Clause 5 offence to be committed, a person must engage in specified conduct in relation to a prohibited place that is unauthorised. They must know, or ought reasonably to know, that their conduct is unauthorised. This therefore protects those who have no reason to know that the activity they are conducting at that specific location is not authorised. There is no requirement to prove intent against the United Kingdom, as the offence is aimed at circumstances where activity is unauthorised but it cannot be established that a person had a purpose they knew, or reasonably ought to have known, was prejudicial to the safety or interests of the UK. For example, if a person trespasses on a site that they know is a prohibited place and steals something from it, that is not on the face of it damaging to the safety or interests of the UK. This is reflected in the lower maximum penalty for this offence of six months’ imprisonment.

The Government consider that including a further condition to prove that conduct is prejudicial to the safety, security or defence interests of the UK significantly reduces the utility of this offence and creates an unhelpful overlap with the Clause 4 offence. This would result in these provisions not being able to capture the full range of potentially harmful activity that prohibited places face. I add that it would seem clear that the innocent photographer taking pictures of RAF aircraft at an air show would not be caught by this offence for the reasons I have set out.

Amendment 47 would add an additional condition to the offence provided in Clause 15(1). The Government reject this amendment because it would create an additional and unnecessary evidential burden to overcome, severely limiting the efficacy of the offence at preventing hostile foreign intelligence activity against the UK. I suggest that no one would ever be prosecuted in the hypothetical situation advanced by the noble Lord, Lord Marks.

The effect of the amendment would be to require the person committing the offence to know, in all circumstances, what the foreign intelligence service intended to do through the provision of the relevant material benefit. Furthermore, the prosecution would be required to prove that knowledge in court on the basis of admissible evidence, which would be a difficult task.

Were this offence to be amended as suggested, it could be simply circumvented by the foreign intelligence service ensuring that the person who would otherwise commit the offence is not told what is intended. In such circumstances, conduct as set out in the offence as drafted would not be a crime. It is the Government’s view that a foreign intelligence service funding operations in the UK is inherently prejudicial to the safety or interests of the United Kingdom.

As to Amendment 49, noble Lords seek to include an additional element of intent as part of the preparatory conduct offence under Clause 16, through the addition of a provision requiring proof that persons engaged in preparatory conduct were acting with a purpose that they knew would prejudice the safety or security or defence of the United Kingdom. In the Government’s view it is unnecessary to include this additional element; if a person engages in preparatory conduct with the intention that it will lead to one or more such offences, the preparatory conduct offence will be committed only if the person has the intention that each element of those offences will be met in the future. I do not accept that the offence could be unintentionally committed in the manner postulated by the noble Baroness, Lady Jones.

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[Baroness Ludford (LD)]

The Minister has the advantage of having read the Government’s response to the JCHR report. As a mere member of the JCHR, I know that, unfortunately, two months after Report, it did not come in time for this Committee, let alone Second Reading. I look forward to reading it.

I did not follow every detail of what he read, but could the Minister tell me what guards against someone being prosecuted under Clause 5,

“Unauthorised entry etc to a prohibited place”?


The clause raises worries about protestors, journalists, photographers and so on, and does not have a test of breaching national security because the criteria in Clause 4—where there is a test of prejudice to the safety or interests of the UK—are not met. It could look as though you have the lower offence, with the possibility of six months imprisonment, where there is no purpose to assist a foreign power and no prejudice to the interests of the UK, but the catch-all of Clause 5, where anyone who wanders on to Ministry of Defence land can attract a six-month prison sentence, whether or not they have done any espionage or harm to the security of the UK. What is the defence to Clause 5 being some sort of compensation for not being able to charge under Clause 4?

[Lord Murray of Blidworth (Con)]

As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.

[Lord Pannick (CB)]

Can I respectfully ask the Minister to write to me before Report, and place a copy in the Library, with a fuller explanation of why I would not be committing a criminal offence by giving advice to a foreign intelligence service? The noble Lord asked what advice; the very simple example I gave was being asked by a foreign intelligence service to advise it whether certain conduct would be unlawful in this country. Would it be a criminal offence for me to advise it on that? Grateful though I am to the Minister for his expression of the hope that I do not end up at the Old Bailey, I would like greater comfort than that. He did perhaps go a little far in suggesting that that would be the view of all noble Lords, but I am grateful for his personal assurance.

[Lord Murray of Blidworth (Con)]

I will endeavour to make sure that that letter goes to the noble Lord as soon as it is prepared.

[Lord Purvis of Tweed (LD)]

I have a genuine query. The Minister referenced a number of times, as I think was cited, that if a foreign intelligence body is operating in the UK unauthorised, it is now considered to be prejudicial to the safety and interests of the United Kingdom. Why is that activity not unlawful?

[Lord Murray of Blidworth (Con)]

The activity itself is made unlawful in the provisions of the Bill. Is that the point that the noble Lord is making?

[Lord Purvis of Tweed (LD)]

So it is unlawful for a foreign intelligence service to carry out any activities within the UK if they have not been prior approved by UK intelligence services. Is that correct?

[Lord Murray of Blidworth (Con)]

As the noble Lord is aware, it is the effect of Clause 2 to prohibit the offences of espionage and assisting a foreign intelligence service. Therefore, those offences in Clauses 1 and 3 of the Bill would have the effect of criminalising activity of the type described by the noble Lord.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister; I am purely seeking clarification for the benefit of my own ignorance. I am concerned that it is not very clear. If a friendly intelligence service is carrying out UK activities, which is not espionage against the United Kingdom, the Government are saying that this is prejudicial against the safety and interests of the United Kingdom but it is not unlawful, but a UK citizen advising on that basis is unlawful. Would it not be clearer to state that that activity is unlawful?

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s remarks. I am not entirely sure that I follow the logic, but I will study Hansard carefully and take it back to the department.

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

My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.

Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendments in this group span Clauses 6 to 11 and cover the new offences of

“Entering and inspecting places used for defence etc”.

These clauses are intended to update the prohibited places provisions which fall within the century-old Official Secrets Act 1911. Given that technological developments, such as the use of drones, are providing new methods of accessing protected sites, it is right that the Government are evolving the offences, and it is right that this Committee is probing how these new offences will be implemented.

The 12 amendments in this group are probing and were recommended by the JCHR. They seek to tighten or narrow the offences and definitions. Amendment 34 in the name of the noble Baroness, Lady Ludford, raises the unintended consequences of these provisions on the right to protest and on journalism. This will be a common theme throughout Committee stage, and my Amendment 88, which will be debated at a later date, will consider the implications of later clauses for journalists and civil society.

Amendment 26 in the name of the noble Baroness, Lady Ludford, and Amendments 27, 28 and 30 in the name of the noble Lord, Lord Wallace, raise questions about where prohibited places may be located and probe why they may include any MoD land and why Crown dependencies and overseas territories are excluded. Given the sentences which offences may carry, it is important that the Minister clarifies the type of locations which will be included. As the noble Baroness, Lady Ludford said, the purpose of this group of amendments is to give greater certainty and narrow definitions. She asked the rhetorical question—perhaps it is not a rhetorical question; it is a literal question—of how people will know whether they are in prohibited places.

The noble Lords, Lord Wallace and Lord Purvis, explored quite interestingly why overseas territories are not included within the definitions, and I look forward to the Minister’s answer on that point. The noble Lord, Lord Purvis, asked other questions about who will be informed. If it will not be the general public, will it be local authorities or police forces, and which police forces will it be? The purpose of this suite of amendments is to look at the limits on the extension of prohibited places and at who should expect to be informed about any such extension. I look forward to the Minister’s answer.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions to this short debate. I will first speak to Amendments 23 and 33 at the same time, given the argument is much the same for both. I am happy to provide the clarity sought by noble Lords and, in particular, the noble Lord, Lord Ponsonby.

Harmful activity relating to prohibited places or cordoned areas around military aircraft can take place directly outside the boundaries of a place or cordon. This could include conducting surveillance, such as taking video or photographs of the sensitive place or aircraft, monitoring the activities of staff located at the site or conducting close-range information technology attacks from outside the place. It is therefore imperative that, where the police believe a person to be conducting such activity, they should be able to order them to move away. None the less, recognising that a cordon may be imposed at short notice, it is a defence provided for in the Bill for a person to prove that they had a reasonable excuse for failing to comply with a cordon under Clause 11. The effect of these amendments would be to reduce significantly the ability of the police proactively to stop damaging activity from taking place.

The police guidance that is being developed in collaboration with the College of Policing will provide further advice to forces on the use of powers in respect of an area adjacent to a prohibited place or cordoned area. I can confirm that this is addressed directly in the Government’s response to the JCHR’s report at paragraph 52 and onwards, and I again thank the committee for its close consideration of this Bill.

Amendment 24 adds a requirement that a police officer obtain authorisation before exercising a Clause 6 power. Due to the inherently sensitive nature of prohibited places, and the threats that they face, it is likely that the Clause 6 powers will be used rapidly to prevent serious and harmful activity from taking place—activity that could well jeopardise the safety of those working within the site itself. Policing often requires the judgment of officers to take quick and decisive action to prevent harm and keep the public safe. It is important that we continue to empower our officers to make these decisions where appropriate. Introducing a requirement for a constable to seek approval from a senior officer may add an extra layer of confusion as to when constables may or may not use their powers, potentially allowing harmful activity to be completed before the police can respond. We recognise that every effort should be made to help ensure that these powers are not used in a disproportionate manner, and, as such, we are working closely with the College of Policing to develop guidance that the police should use before exercising the powers granted under Clause 6.

Amendment 25 seeks to provide that it is an offence to fail to comply with a Clause 6 order only if the order was necessary and proportionate to protect the safety or interests of the United Kingdom. The legislation is clear that a constable may exercise a power under Clause 6 only if they reasonably believe that doing so would be necessary to protect the safety or interests of the UK. The Government therefore consider that this amendment is unnecessary. As with any such situation, where it is alleged that a constable has acted outside the scope of their powers, a decision to give the order is rightly open to challenge. As it is an important point, I will stress again that the Government are working closely with the College of Policing on the guidance which should be used prior to making any decision to exercise powers under Clause 6.

On Amendment 26, it is crucial for national security that the UK continues to protect all areas used for defence purposes and by the UK intelligence community. Carving out certain places over others within these categories in the way this amendment proposes risks creating gaps that hostile actors could exploit. It could require the Government to pinpoint their most valuable defence and intelligence sites in order to establish that they are indeed prohibited places and so put these places even more at risk of harmful activity—the very opposite of what the prohibited places regime is setting out to achieve. Moreover, the proposed amendment focuses only on the risk posed by entry to such sites, which fundamentally undermines the protection being given to these sites against a range of harmful activity. It also, in inserting this condition around potential risk, significantly reduces clarity on the face of the legislation as to what constitutes a prohibited place.

I understand the intention behind this amendment, which is to ensure that land that might already be accessible, or where there is not perceived to be a significant risk, is not covered by the provision. I want to assure noble Lords that Ministry of Defence land that can be lawfully accessed by the public and such areas of the British countryside with public footpaths do not need to be excluded, nor do the public need to be given authorisation to be in that area. Therefore, they will not commit an offence under Clause 5. They will be committing an offence under Clause 4 only if the conduct is a specified activity with a purpose that they know, or reasonably ought to know, is prejudicial to the safety or interests of the United Kingdom. It is important we are able to catch such harmful activity, even on publicly accessible land. Ministry of Defence land that can lawfully be accessed by the public is still used by our Armed Forces, often for purposes that are sensitive in nature, and it is critical they should be afforded the protections granted by the prohibited places provisions.

I will address Amendments 27, 28 and 30 together, given they all seek to extend the prohibited places provisions to the Crown dependencies and the wider British Overseas Territories. The Crown dependencies and British Overseas Territories are not a part of the United Kingdom, of course, but self-governing territories with democratic Assemblies able to legislate for themselves, including on national security. Should any British Overseas Territory or Crown dependency consider it necessary to designate prohibited places within their territory, they may make similar provisions in their own legislation.

It is of note that the Government consulted with the Crown dependencies on their inclusion within the prohibited places regime, and they have advised it would be preferred if they looked towards mirroring these provisions under their own law and legislation. It is only right and proper that the United Kingdom respects these decisions. I hope that addresses the point raised by the noble Lord, Lord Wallace. I am sure the Bailiwick of Guernsey will think long and hard about the Alderney breakwater. As the grandson of an Alderney girl, I can tell noble Lords how much that breakwater is a feature of conversation.

It is important to address why the Government have chosen to include land or buildings within sovereign base areas—particularly those of Akrotiri and Dhekelia—in the prohibited places regime. Sovereign base areas are critical for UK defence and have special constitutional status among the British Overseas Territories in that their administrator, who also holds the title of “Commander British Forces Cyprus”, is vested with all the executive and legislative authority. This unique context of the sovereign base areas is precisely why, at their request, we are also including the option to extend the provisions in the Bill to the sovereign base areas. As such, it is right that the UK continues to afford protections specifically to the sovereign base areas through the National Security Bill.

Amendment 29 creates a legislative requirement to inform the public of prohibited places. The safeguards in place within Clauses 4 and 5—namely, that a person must either have a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom or know, or ought reasonably to know, that their conduct is unauthorised—protect those who have entered, or are in the vicinity of, a sensitive site without having any knowledge that they have done so.

The Government agree that, where it is reasonably practicable, every effort should be made appropriately to notify the public of areas designated as prohibited places through the use of signage surrounding these places. However, the Government consider that making it a legislative obligation to notify the public of the location of every site designated a prohibited place is not proportionate, given that Clause 7 already makes public the types of sites that will be prohibited places. Equally, any designation under Clause 8 will set out in law any further types of sites that will be prohibited places. Furthermore, and crucially, there will be a number of sites which, due to their highly sensitive nature, it would be harmful to UK national security if they were publicly declared as prohibited places.

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[Lord Purvis of Tweed (LD)]

I have two quick questions for the Minister. I was grateful for his response to me with regard to local authorities. Can he clarify which lands will be categorised under the Crown interest? Under Clause 7(4)(b), they are

“an interest belonging to a government department or held in trust for His Majesty for the purposes of a government department”.

It is not singled out, so is my assumption correct that these government departments include devolved Administration departments—the Scottish Government, et cetera?

Similarly, I was grateful for the Minister’s reference to the College of Policing, which was also referenced in Committee by his counterpart in the House of Commons. I have heard no reference to the Government working with the Scottish Police College, which is the relevant body north of the border because the College of Policing is only for England and Wales. This is important, because many of these lands are north of the border, where I live. If the Government are consulting, they need to consult with the Scottish Police College as well. I would be grateful for that assurance.

[Lord Murray of Blidworth (Con)]

Yes. My suspicion is that both answers are in the affirmative, but I am afraid I do not know for sure. I will find out from my officials and write to the noble Lord. I thank him for raising that.

[Baroness Ludford (LD)]

My Lords, I am quite disappointed by the Minister’s responses on this. There are considerable dangers in this part of the Bill. The Minister referred to the fact that the offence under Clause 4 is committed only if

“the person knows, or ought reasonably to know,”

that their conduct

“is prejudicial to the safety or interests of the United Kingdom.”

We have been around those houses before. Ought ramblers reasonably to know that they are

“in the vicinity of a prohibited place”?

Again, what does that mean? It is like “adjacent”. I do not think the Minister replied on the meaning of “adjacent”; forgive me if I missed that. It is all very difficult for some normal, uncriminal person to know that they are committing an offence under Clause 4. Clause 5 also says they “ought reasonably to know”. It is all rather reminiscent of being “in the vicinity” or “adjacent”. The Government also have powers to designate more places as prohibited.

The Minister drew our attention to the defence

“to prove that the person had a reasonable excuse for that failure”

under Clause 11 in relation to a cordoned area. As far as I can see—I might have missed it—there is no such reasonable excuse defence in relation to the offences under Clauses 4 and 5 on entering or unauthorised entry to a prohibited place. If I am wrong, no doubt the Minister will be able to write to correct me.

This all seems quite reminiscent of the Covid restrictions. In the last couple of days, the human rights barrister Adam Wagner did a review of Matt Hancock’s diaries, or so-called diaries. Presumably, as he is an ex-Cabinet Minister, this publication would have been vetted by the Cabinet Office. This is the Minister who would have signed off all the SIs on Covid restrictions—200, or however many there were. The publication by Mr Hancock says that these were all SIs under the Coronavirus Act, which is not true; they were under the public health Act 1984, if memory serves. It went through the Cabinet Office with no one picking up that the reference was to the wrong law. This is reminiscent of the chaos among the police in applying the restrictions, their failure to distinguish between guidance and law, and the general outrage among the public at being told they could not do things that actually were not illegal. This did not help the reputation of and trust in the police.

I foresee similar echoes from the provisions of this Bill, of an outraged Middle England—or middle UK—where people find themselves adjacent to or in the vicinity of a prohibited place on Ministry of Defence land having had no reason to know about it. The Minister said he would try to consider putting up notices, but I do not think there has been any guarantee. So someone might not know that they were in the vicinity of a prohibited place that is defence land, committing an offence with potentially draconian penalties. This is inadequate as law. The Minister did say that there would be guidance, but there was guidance for the Covid regulations and that did not always solve the problems.

So, while I hear what the Minister says, I will want to return to some of the issues in this part of the Bill. The proposed law is sloppy. It could find innocent people either criminalised or dissuaded from taking their normal walk because they are not sure whether they are allowed in an area, and there could be a general chilling effect on people’s leisure activities. That said, and with the intention of having another look at all of this on Report, I beg leave to withdraw my amendment.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

Moved by

[Lord Murray of Blidworth]

52: Schedule 2, page 73, line 17, at end insert—
“4A An application for an order under paragraph 3 or 4 may be made without notice to a judge in chambers.”Member's explanatory statement
This amendment provides that an application for a production order may be made without notice to a judge in chambers. Schedules 3 to 5 already make equivalent provision for orders under those Schedules.

[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 Murray of Blidworth (Con)]

I am very grateful to the noble Lord for his remarks and I take on board what he says. These minor and technical amendments seek to bring consistency across the police powers in the Bill, as I have said, by aligning Schedule 2 with the equivalent provisions in Schedules 3 to 5. It is right that we are consistent across the Bill in its provisions and definitions, which these amendments seek to achieve.

Amendments 52 to 59 agreed.

--- Later in debate ---

[Lord Hacking (Lab)]

I will just say hear, hear—the Bill is far too long and far too complicated.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—

[Baroness Ludford (LD)]

I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to

“proceeds from crime from state threats activity”.

I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if

“the detained person has benefited from their criminal conduct”

and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for that very helpful reply, which put on the record clarification of certain things, in particular that the word “constable” applies to all police forces across the UK. That was helpful in answer to the points raised by the noble Baroness, Lady Ludford. As the Minister will know, a number of regulations and codes of practice will be coming before Parliament with respect to the detention of people under these powers. They will require some quite careful consideration by Parliament.

With that, I beg leave to withdraw the amendment.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.

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

I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.

I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.

The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

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

My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.

--- Later in debate ---

This dilemma cannot just be put in the “too difficult” pile; it cannot be put somewhere we can all reflect on it “at some point”. We somehow have to find a way to try to reconcile this conflict which gives certainty to the legislature, while ensuring that all of us can maintain the confidence we have in our democracy that serious wrongdoing can be exposed and simultaneously protecting national security—that should not be beyond us. That is why the amendment tabled by the noble Lord, Lord Marks, although not correct in every detail, is important, and why my amendment has been brought forward: to try to tease out, from the Government and this Chamber, people’s views on how we take this forward in a way which commands general support.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.

It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.

The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.

I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.

Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.

I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.

[Lord Coaker (Lab)]

I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?

[Lord Murray of Blidworth (Con)]

I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.

I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.

The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.

The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.

I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.

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[Lord Purvis of Tweed (LD)]

The Minister knows that, on previous days in Committee, we have discussed the issue of how the interests of the United Kingdom are defined and how broad that is. Whom does he believe should be the final arbiter in defining what is in the interests of the country and in the public interest?

[Lord Murray of Blidworth (Con)]

The noble Lord’s question as I understand it is whether the decision about public interest is one for the police or for the prosecutor because, in reality, that is where the decisions would lie. Ultimately, if both those bodies were satisfied and a prosecution were brought, the issue would be one for the court.

It is our position that a public interest defence is neither necessary nor appropriate. However, it is important to point out that, even if the Government were to accept the case that the offences risked criminalising such legitimate activity, a public interest defence would not be an appropriate way to address this issue. As crafted, the proposed defence puts the onus on the Government to prove “beyond reasonable doubt” that the defence did not apply. This defence would therefore act as an open invitation to those who seek to conduct espionage against the United Kingdom, and disproving this defence would likely require the disclosure of further sensitive material and only serve to compound the original harm.

The consequence of this is that those who intend to harm the United Kingdom will be able to exploit this defence to continue conducting harmful activities in the knowledge of the prosecution difficulties that would be faced by the authorities. This would limit the effectiveness of the legislation in enhancing our ability to deter and disrupt harmful activity.

Amendment 120B, proposed by the noble Lord, Lord Coaker, would require the Minister to publish an assessment of the potential merits of introducing a public interest defence. As I have just laid out, the Government have extensively considered the merits, or otherwise, of such a defence, and this renders a review after the Bill’s passage unnecessary, for the reasons I have already set out. Thus, for all these reasons, the Government cannot accept the tabled amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I am conscious that, as the noble Baroness, Lady Manningham-Buller, mentioned, we will come on to the whistleblowing aspect, but the Minister was at pains to quote liberally from the Law Commission’s evidence to the Public Bill Committee in the Commons on this. I of course have read the evidence, as others will have done. I was interested when it came to the disclosure of information element, because Professor Penney Lewis told the Public Bill Committee:

“Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]


Why are we not legislating for that in the Bill? The Minister seemed to have accepted everything that the Law Commission had said, but not this.

[Lord Murray of Blidworth (Con)]

It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.

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

My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.

There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.

I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.

If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase

“necessary in a democratic society”.

Everything else is subject to that in the qualification.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, Amendments 76, 77, 78 and 79, in the name of the noble Baroness, Lady Ludford, enable us to discuss the state threats prevention and investigation measures. As she outlined, Amendment 76 seeks to set a 14-hour limit on the time that someone subject to such a measure has to remain in their residence. Amendment 77 would require the Secretary of State to receive confirmation from the police that prosecution is not realistic, rather than requiring only consultation before a measure is imposed, as outlined in Clause 44(1). These are simple but important amendments, as the noble Baroness, Lady Ludford, outlined, and the Government need to respond to them logically, particularly as they are recommended by the JCHR. In Committee last time, we all referred to the importance of the JCHR recommendations that come before us. It is particularly important that questions such as these are asked because, although we accept that STPIMs are a useful tool to have available, they impose intrusive restrictions on an individual, outside the criminal justice process, as civil measures.

In view of Amendment 76, if there is no time limit, what is acceptable? Are 20 or 21 hours acceptable? As the noble Baroness, Lady Ludford, pointed out, these are essentially curfews on an individual. Although they may be justified—no one is questioning the fact that sometimes they may be necessary—some thought from the Government about what we actually mean by the imposition of time limits or curfews on an individual, and how that might be arrived at, is important. Secondly, should we not always seek to prosecute, as Amendment 77 seeks to do? The police confirming that it is not possible is a real protection, while not compromising national security; again, that is the aim of all of us.

On the more general question of STPIMS, legal aid will be available to individuals but, if they are to challenge effectively, will individuals subject to such an order be fully aware of the reasons why it has been imposed and able to challenge the imposition of such measures? Who will oversee the use of these powers? Can the Minister reassure us that, in making such a decision on application by the Secretary of State, the courts will be given all the information that they need to properly inform their decision, and that they will not be used arbitrarily, out of frustration that a criminal prosecution cannot be pursued? That was a really important point from the noble Baroness, Lady Ludford: this is not a substitute for prosecution but something to be used where, for whatever reason, it is simply not available. But we need some reassurance that criminal prosecution will always be pursued as the first option.

We accept that there is a potential need for such measures, but, given their civil nature and the very real impacts on the liberties of individuals, even if necessary for national security reasons, they demand of us the need to be ever more vigilant when it comes to freedoms and human rights within a democracy. Like the noble Baroness, Lady Ludford, I look forward to the Minister’s response.

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

My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.

Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to

“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.

Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.

Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.

I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.

In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.

The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.

On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.

[Lord Carlile of Berriew (CB)]

Can the Minister help the Committee by giving us an estimate of the scale of the problem? Do the Government expect a number of STPIMs which is roughly the same as the number of TPIMs in existence at present or do they expect more than or fewer than a handful? An assessment must have been made of these numbers.

[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.

On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must

“secure that the investigation of the individual’s conduct … is kept under review”.

It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

My Lords, Amendments 80 and 81 propose having an independent reviewer to cover more than Part 2 of the Bill. The Government have committed to consider this idea in the other place, and the speech made by the noble Lord, Lord Anderson, was compelling on this point.

The Government have been considering whether extending the oversight of the independent reviewer could be done in a way that does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing oversight mechanisms governing both the UK intelligence agencies and the police. For example, we must consider how extending oversight of the Bill would interact with the Investigatory Powers Commissioner’s role in overseeing the powers referred to in Clause 27. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty as to the appropriate reviewer.

It is proposed that Part 4 of the Bill should be reviewed by the Independent Reviewer of Terrorism Legislation. Of course, Part 4 contains measures to freeze civil damages awarded to claimants seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, these matters are already in the IRTL’s remit to review. An explicit commitment to oversight of Part 4 of the Bill is therefore unnecessary and would duplicate the Independent Reviewer of Terrorism Legislation’s existing discretion to review and report on terrorism-related legislation.

As a point of clarification on a point made by the noble Lord, Lord Anderson, the Government are not extending the purview of the Independent Reviewer of Terrorism Legislation to cover Part 2 of the Bill—rather, they are creating a new independent reviewer role entirely.

With these points in mind, while the Government cannot accept these amendments, we are committed to making a decision on extending oversight of the Bill at the next stage of its passage.

[Lord Purvis of Tweed (LD)]

With a glance at the impact assessment on this part of the Bill, the Government’s estimate is that there will be between four and 12 cases a year for the independent reviewer. Just for the sake of efficiency alone, it would make sense to extend a structure which is already in existence and operating well, rather than creating a new system which would have potentially a miniscule role—especially since the impact assessment says that it would be down to the discretion of the reviewer

“how much time they spend reviewing the STPIMs”.

[Lord Murray of Blidworth (Con)]

Obviously, the noble Lord makes a valid point, and I am sure it will feed into the department’s consideration about extending the oversight.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister, but it may assist the Committee to know what will happen next. It is welcome that the department will be thinking about this, but it would be good to have a bit of a steer as to what the Government intend to do before Report.

[Lord Murray of Blidworth (Con)]

We invite the proposers of the amendments not to press them; further information will follow.

[Baroness Ludford (LD)]

Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.

I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.

In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord, Lord Wallace, has raised an interesting but complicated question to answer. He has given various examples of the complications involved in trying to identify the owners of companies. From my own experience as a part company owner and director, I did not know who the shareholders in my own company were, once the ownership was traced back. This is a very difficult and involved question, and I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their contributions; it is indeed a complex issue. Amendment 83 seeks to provide that, where an entity receives 25% or more of its revenue from a foreign power, it can be considered as subject to control from a foreign power and eligible to be specified under the enhanced tier of the scheme. I commend the spirit with which this amendment has been made. The noble Lord’s aim of increasing transparency supports the objectives of the scheme, but it is vital that we strike the balance of proportionality.

It is important that we maintain a distinction between funding, or donations, and control. However, I hope the noble Lord will be reassured that where, in practice, funding does result in a foreign power directing or controlling the activities of the entity, a condition for foreign power control already given in Schedule 13 will still be met. Where this condition is met, it will be possible to specify the entity under the enhanced tier.

We recognise that it is imperative that this scheme maintains the flexibility to adapt, should a foreign power seek to take action to evade the scheme’s scope and requirements. Part 3 of Schedule 13 provides this necessary flexibility by allowing for the conditions of control to be amended for permitted purposes by regulation. For these reasons, the Government cannot accept the proposed amendment and invite its withdrawal.

[Lord Wallace of Saltaire (LD)]

My Lords, I foresee yet another bout of litigation over who really owns what as this is implemented. We have seen a fair amount of argument among different Russian oligarchs about who owns what, and what political influence may or may not have been involved, in the London courts. This is one of the many ways in which the Bill, in its current form, is not proportionate. This is, again, why we need to move slowly, carefully and cautiously as we complete our scrutiny of the Bill.

We must not put too much of a burden on the individual business man and woman, or the individual customer, but, at the same time, we must do our utmost to ensure that foreign money, as it comes into British politics and British political life, is identified as vigorously as possible. Incidentally, I am not convinced that the Bill does that, as I said in an earlier session. That is one of the ways in which the Bill needs to be strengthened rather than weakened. This will, I hope, form part of the discussions that we will have off the Floor, during the process in which the Government will produce their promised policy statement, and before we come to Report. I beg leave to withdraw.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

Moved by

[Lord Murray of Blidworth]

105: Clause 77, page 52, line 20, leave out “copying” and insert “the disclosure”
Member's explanatory statement
This amendment clarifies that the power in clause 77(1)(b) relates to the onward disclosure of information provided to the Secretary of State under clause 72 or 73.

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

My Lords, Clause 77 allows the Secretary of State to make regulations about the publication and sharing of information provided through the foreign influence registration scheme. Amendment 105 clarifies that power at Clause 77(1)(b) and provides for the Secretary of State to make regulations about the onward disclosure of information registered or provided under the foreign influence registration scheme. The amended provision will enable the Secretary of State to provide clarity in respect of what data can be lawfully shared where necessary. I therefore ask the Committee to support this amendment. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.

The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.

[Lord Coaker (Lab)]

My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.

Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for those contributions. I can, of course, reassure the noble Lord, Lord Carlile, who will be aware that my noble friend Lord Sharpe committed in this House that a policy statement would be published ahead of Report.

On the points raised by the noble Lord, Lord Coaker, clearly the drafting of the regulations will necessarily follow the shape of the scheme, which is reflected in the final version of the statute. Therefore, it would not be appropriate at this stage to have draft regulations to consider. As to the appropriate method by which the regulations should be approved, it is the Government’s view that the negative procedure is appropriate for these minor and technical regulations, given what they do to enable the disclosure of information provided to the department in accordance with the scheme.

Therefore, for all those reasons, we submit that this is a minor and technical amendment that simply clarifies the purpose of the power, and that it is intended specifically to enable the Secretary of State to make provision through regulations for the onward disclosure of information registered under FIRS, and I therefore ask the Committee to support this amendment.

[Lord Pannick (CB)]

Perhaps I could press the Minister on this. He said that there will be a policy statement before Report. The noble Lord, Lord Carlile, was asking whether we can see the draft regulations. I entirely understand the Minister’s point that the final version of the regulations will need to await the passage of the statutory scheme, but why can the department not produce draft regulations which will inform discussion on Report?

[Lord Murray of Blidworth (Con)]

At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.

[Lord Carlile of Berriew (CB)]

I am sorry to intervene again, but does the Minister not see that this is illustrating the whole mistake in producing important legislation arising from amendments made in Committee in the House of Commons? If this part of the Bill had been drafted in the normal way, by parliamentary counsel with time to develop it and to consult, it would have been perfectly simple to produce draft regulations in time for Report in the House of Lords, which is nearly at the end of the legislative process. Is this not really just a guilty plea to having had insufficient time to prepare a Bill that came to this House based on an idea which was not even government policy?

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.

[Lord Coaker (Lab)]

I say to the Minister, before he sits down, that in view of what the noble Lords, Lord Pannick and Lord Carlile, have said, it is not satisfactory. We do not have a policy statement, we cannot see the regulations and, when the regulations are passed, the Government will pass them through the negative procedure. I would have thought, at the very least, given the worries and concerns that have been raised, that the affirmative procedure, as the Delegated Powers Committee said, in these circumstances in particular, might be something the Government would consider. I ask the Minister to reflect on that.

[Lord Wallace of Saltaire (LD)]

I hope the Minister will agree to draw the attention of his department to the debate held in this House last week on delegated legislation and to the very strong sense across the whole House, including on his Benches, that this House is meeting a Government who give us less and less information about regulations and prefer to leave more and more out of Bills so that Ministers may act as they are. This is an abuse of Parliament and should not be pursued further. That message is particularly important for a Bill such as this, and the Government should consider it.

[Lord Murray of Blidworth (Con)]

I have no doubt that the department will reflect on those points. We are all very aware of last week’s debate, in which the Leader participated.

Amendment 105 agreed.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

I thank the noble Baroness very much for that clarification; in that case, the amendment certainly needs some amendment itself.

I am also puzzled as to the route proposed that any disclosure, particularly from one of the intelligence agencies, can go to any public authority. Again, that seems a surprising route for a whistleblowing channel for somebody in the intelligence and security agencies.

More particularly, and more importantly, I absolutely fail to recognise the culture of cover-up that the noble Baroness, Lady Kramer, cites. Having worked in the Security Service for 33 years, I am confident in saying that, far from there being a culture of cover-up, there was in fact a strong willingness to speak up, as far as I could see. There was strong and, at times, fairly heated internal debate on some of the ethical matters that have been cited in this debate. So I do not believe that the characterisation of the intelligence agencies we have just heard in any sense accurate. Although the noble Baroness, Lady Manningham-Buller, gave the complete list of everybody to whom a member of the agencies could go, I think that almost anybody in the agencies would recognise their ability to go to the internal ethics counsellor—a role that plays an important part in actively encouraging debate of these issues—who has a direct right of access to the director-general of the day; I am sure that that would still be the case. That role has now extended from the Security Service to the other intelligence agencies. Also, it was clear and straightforward how you obtained the contact details for the external counsellor who acted as a whistleblowing channel directly outside the service. Of course, that was put in place specifically because of previous concerns that there was no such provision, and it was reflected in the legislation of the day.

I feel that the detail of this amendment is not clear —certainly not to me. The need for this amendment has not been made clear, in my view, because it is based on a rather misleading characterisation of the internal culture of the intelligence services. In my experience, there has been considerable focus on ethical matters and the ability internally to debate those.

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

My Lords, I thank Members of the Committee for all their speeches. Amendment 119 seeks an assessment of how the Act relates to the Official Secrets Act 1989. As we set out in last week’s debate, the new espionage offences in Part 1 of the Bill replace and reform the existing provisions in the Official Secrets Acts from 1911 to 1939. They carry strict tests for a person to be caught within those sections. For example, the first two offences apply when a person is acting for, on behalf of, or with the intention to benefit a foreign power. This is distinct from the Official Secrets Act 1989, which covers unauthorised disclosures by Crown servants and government contractors. As the Committee knows, the Government are not reforming the 1989 Act through the Bill, as has been observed this evening. Under the existing law, it is possible that a person making a damaging disclosure could commit both the espionage offence in the Official Secrets Act 1911 and an offence under the Official Secrets Act 1989.

Pausing there, I thank the noble Lord, Lord Hacking, for his contribution in relation to the 1911 Act. The difference, drawn out in the fact that you could commit both an offence of espionage under the Official Secrets Act and an offence under the 1989 Act, will continue to be the case. It is possible that a person could commit an offence under two pieces of legislation simultaneously and be charged in relation to both. That is not a matter unknown in the criminal law. Any overlap between the espionage offences in the Bill and the Official Secrets Act 1989 allows us to prosecute damaging acts in the most appropriate way. Where a person commits both a 1989 Act offence and an espionage offence under the Bill, the charging decision would be taken by the Crown Prosecution Service in accordance with the Code for Crown Prosecutors, as is always the case. CPS prosecutors select the charges that they consider are most appropriate on the facts of each case, and to reflect the nature of the wrongdoing. I hope that this explanation reassures the Committee that the Government have carefully considered the interaction between our new offences in the Bill and those in the 1989 Act.

The noble Lord, Lord Coaker, raised a question regarding reform of the 1989 Act, and I will address it directly. The Government’s view is that the Official Secrets Act 1989 is an essential part of our ability to protect national security and sensitive information. However, the views and concerns raised by stakeholders in response to our public consultation for the Bill, including those in favour of not reforming the Act at all, highlight the complexity of the legislation and the wide variety of interests that should properly be considered before pursuing any reform. Given its complexity, we are also concerned that reform of the Official Secrets Act 1989 at this time may distract from the Government’s package of measures in the Bill to counter state threats, and prevent us from providing law enforcement and the intelligence agencies with the tools that they need now directly to tackle these threats. Accordingly, we do not have any immediate plans to pursue reform of the Official Secrets Act 1989, but will continue to keep that position under review. The matters raised by the noble Lord, Lord Wallace, are well considered. Issues such as whether to increase maximum sentences under the Official Secrets Act 1989 would be considered as part of potential reform proposals and would be viewed in the round with the measures of sentences in the Bill.

Amendment 120 tabled by the noble Baroness, Lady Kramer, proposes the establishment of a new office for the national security whistleblower. We are told that the aim of such an office would be to protect whistleblowers who make disclosures related to offences under the Bill where disclosures are considered to be in the public interest. Of course I pay tribute to her in her ongoing work and efforts to champion the important cause of whistleblowing. The Government are committed to ensuring that our whistleblowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister. He is aware of the point I raised earlier in Committee, which, as he correctly pointed out, pertained more to the Official Secrets Act in respect of the authorised disclosure of information. The Law Commission’s recommendation is clear—that there should be an independent statutory commissioner, to which individuals can go, who has investigatory powers—but the Minister says that there are no plans to reform the 1989 legislation.

We heard from the noble Lord, Lord Evans, and earlier from the noble Baroness, Lady Manningham-Buller, that they do not recognise this culture, but the Law Commission came to its own view and its own recommendation. Do the Government accept that recommendation but then say that they are not going to do anything about it, or will we have to find a way to bring together the disclosure of information and the points that my noble friend raised? The Law Commission’s recommendation was perfectly clear, and it was not besmirching the culture within the agencies. It was a very clear recommendation.

[Lord Murray of Blidworth (Con)]

Indeed, the Law Commission made a recommendation about a potential reform to the 1989 Act. As I have already said, that is not the purpose of this Bill and will be a matter for a future reform, which will not be conducted immediately, as I already explained in answer to the point from the noble Lord, Lord Coaker. The Law Commission’s recommendation will have considerable weight but, at this stage, I cannot prejudge any government decision in relation to the 1989 Act.

In last week’s debate, the noble Lord, Lord Coaker, asked about the Government’s plans to update internal whistleblowing guidance. I can confirm that the Government regularly keep this guidance under review and, last year, they updated it to include specific reference to how to raise an issue that would require disclosure without breaching the Official Secrets Act 1989. The updated internal guidance has been shared across departments and agencies, with confirmation from all Whitehall departments that a review of their own processes and procedures has been undertaken or is planned.

Across government, organisations have also continued to undertake activities further to develop a safe and supportive culture for raising concerns. Over the last year, the majority, including all 17 Whitehall departments, have undertaken communications through awareness-raising events and campaigns, including an annual “Speak Up” campaign.

We of course understand that journalists have a specific and important role to play in holding government to account in our democratic society. We also understand that responsible journalists do not want unwittingly to put lives at risk or compromise national security. That is why we have robust processes in place which enable journalists to mitigate the harm caused when considering the publication of potentially damaging information.

For example, during the Government’s public consultation on the Bill, several media stakeholders commented on the value of the Defence and Security Media Advisory Committee—the DSMA—which alerts the media to the consequences of disclosing certain types of information and provides advice on how to mitigate damage, while leaving editors to judge whether to publish or broadcast. A number of editors already engage with this valuable process when considering the publication of sensitive information, and we encourage them, and others, to continue to do so.

The Government are committed to ensuring that these channels are safe, effective, and accessible. Accordingly, for the reasons I have just set out, the Government, with regret, cannot accept the tabled amendments and invite their withdrawal.

[Lord Coaker (Lab)]

My Lords, I will be brief, but will start by thanking the Minister for his response and all noble Lords for their contributions to this short but important debate. I am grateful to the Minister for following up on my question from last week about what was happening with the updating of guidance for people in departments across government who wish to raise concerns. But frankly, the headline from what the Minister has said is that the Government have kicked the reform of the Official Secrets Act 1989, which was never particularly on the immediate horizon, into the long grass. That is deeply disappointing because, irrespective of one’s view, the issues of the public interest defence and people being able to come forward—whistleblowers, if you want to call them that—will not go away. Reforming the Official Secrets Act would have enabled us to debate that and come up with an Act that is relevant to 2023 and beyond. As I say, it is deeply disappointing that the Minister has effectively kicked that reform into the long grass, and that is the headline from this response to the amendments. With that, I beg leave to withdraw my amendment.

National Security Bill

Lord Murray of Blidworth Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

I think that the position of the Labour Party was perhaps best summed up by the noble Lord, Lord Evans, when he spoke just now. It is clearly not for any individual to be in a position to decide on the wider security aspects of any potential activity; that could have extremely damaging implications, and to claim a public interest defence may be inappropriate. There need to be appropriate safeguards, and there needs to be a more targeted approach. We believe that our Amendment 18A, establishing a mechanism for addressing the concerns expressed by the House, would be the best way forward.

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

My Lords, this group of amendments covers the introduction of a public interest defence—a PID. This topic has been debated at length throughout the passage of the Bill. As the House will hear, the Government agree with the criticisms of Amendment 79, just elucidated so clearly by the noble Lord, Lord Ponsonby.

I thank all noble Lords for their remarks during this debate, especially the degree of involvement we have had in the development of the Bill generally, as noted by the noble Lord, Lord Purvis, on the last group. However, it is right to say that the amendment does not address the issues that arise, and the Government therefore cannot accept it. As I set out during the debate in Committee, the offences in the Bill target harmful activity from foreign states, not whistleblowing or public interest journalism. Our view, therefore, is that a public interest defence is not only unnecessary but risks significantly undermining the utility of the provisions in the Bill.

The Government’s principal position is that a public interest defence in relation to espionage is not appropriate. While we note the changes made to the amendment, this does not change the Government’s view on the matter. Notably, the risk with a public interest defence is that, at the point that the defence comes into play, the harm will already have been done. Seeking to rebut any form of public interest defence in criminal proceedings risks only compounding the damage. This, of course, is a point already eloquently made by the noble Lord, Lord Evans.

Furthermore, the proposed public interest defence for onward disclosures of information obtained via the espionage offences in the Bill, as has been proposed here, is inherently damaging to the national interest. I also entirely agree in this regard with the noble Lord, Lord Evans. To permit onward disclosures of this information under any circumstances would significantly undermine the weight we are affording to these offences.

The questions posed about the Law Commission’s recommendations relate to the Official Secrets Act 1989 which is not, as we discussed in Committee, the topic of reform in this legislation. We have heard strong views and concerns raised about the 1989 Act in our public consultation, and we need to take time to give proper consideration to those concerns. Therefore, we are not reforming the Official Secrets Act 1989 in this Bill.

It is clear to us that reform is complex and engages a wide range of interests. It is only right that proper due consideration should be given to the concerns that stakeholders have raised in the consultation. Furthermore, we need to prioritise delivery of our wider package of measures to tackle state threats and ensure that our law enforcement and intelligence partners have the tools that they need to keep us safe from those seeking to do us harm. We do not want the complexity of Official Secrets Act 1989 reform to distract from this. To that end, I agree with what the noble Lords, Lord West and Lord Evans, said.

I turn to the points raised in the previous group by the noble Lord, Lord Purvis, in relation to whistleblowers. We say that there are sufficient safeguards for whistle- blowers in the espionage offences. For the offence of obtaining or disclosing protected information, that activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. If an individual uses appropriate whistleblowing routes, their conduct would not meet this requirement—a point powerfully made by the noble Baroness, Lady Manningham-Buller, when these amendments were being considered in Committee.

For the offence of obtaining or disclosing trade secrets, the activity has to be unauthorised. Using appropriate whistleblowing routes would not meet the requirement for unauthorised activity. Moreover, there is a damage element to the offence in Clause 2(2)(b). For the offence of assisting a foreign intelligence service, the person has to know or reasonably ought to know that their conduct may assist a foreign intelligence service in carrying out UK activities or intend their conduct to do so. This is very different from reporting something to an appropriate regulatory body as a whistleblower.

It is not the case that there is a reliance upon juries in the place of a whistleblowing defence, as the noble Lord, Lord Marks, appeared to contend. The role of a jury, when advised by the judge, is to determine whether the defendant is guilty or not guilty based on the evidence presented during the trial. This takes up many of the points raised by my noble and learned friend Lord Garnier in his speech a moment ago. This is an integral tenet of our justice system and applies in 1989 Act cases. This does not mean that the Official Secrets Act 1989 legislation is deficient. There is, of course, no statutory public interest defence in the 1989 Act, and therefore it is already clear in the law that juries should not acquit a defendant on the basis that they consider that the public interest in making a disclosure outweighs the damage caused by the disclosure. The Government are clear that we do not consider the introduction of a public interest defence in the Official Secrets Act 1989 to be appropriate. It is not the safest or most appropriate way for an individual to raise a concern of wrongdoing and have it rectified. It is already possible to make disclosures of information that are not damaging without breaching the 1989 Act.

However, the Government have heard and understand the concerns that the Bill could inadvertently capture genuine journalistic activity, as we discussed in the previous group. Even if the Government were to accept that these offences risk criminalising such genuine activity, a public interest defence would not be an appropriate way to address this. This sentiment was echoed by the noble Lord, Lord Carlile, during the debate on the public interest defence in Committee, for which I am grateful. Indeed, a public interest defence would create loopholes that hostile actors would use to commit espionage against the United Kingdom.

As the noble Lord, Lord Evans, was quite correct in saying, the difficulty for whistleblowers is that they have an imperfect picture of the available information. It is not for the whistleblower to determine the extent of potential damage caused by the disclosure in the public interest.

The question of damage was raised in the debate. It was suggested that a damage requirement should be added to these offences. The Government’s position is that this would significantly undermine their utility. The type of activity described in the offences is inherently damaging. For example, in Clause 1, if an individual discloses protected information to a foreign power or otherwise on their behalf or for their benefit with a purpose

“prejudicial to the safety or interests of the United Kingdom”,

this is inherently damaging. Including a damage requirement would mean that we may need to prove the damage caused by disclosure in court. This, of course, would risk compounding that damage further. If we could not prove that damage in court, for example, because the risk of compounding the damage was too great, a person could freely provide protected information to a foreign power with the intention to prejudice the United Kingdom.

I already noted the potential risks and loopholes that could be created and exploited. This is not a defence in relation to Clause 3(2). The Government have extensively considered the arguments for and against a public interest defence but have concluded that the risk this could cause to the United Kingdom and the fact that this would undermine the purposes of the Bill mean that such a defence is not appropriate. Therefore, there is no need for an assessment and formal consultation on the inclusion of such a defence as tabled by the noble Lord, Lord Coaker, at Amendment 18A and the Government do not accept that amendment. As the noble Lord, Lord Purvis, noted, there have been significant changes to the oversight provisions in the Bill. It is correct that this amendment should be viewed in light of those changes in position by the Government.

Instead, we say that the focus should be on ensuring that the drafting of the requirements and offences in the Bill is sufficiently tightly drawn to ensure that genuine activity, including by journalists, is not in scope. This is why the Government have responded by tabling amendments to the provisions in Part 1, as stated a moment ago by my noble friend Lord Sharpe. This includes clarifying the phrase “ought reasonably to know” and the amendments to Clause 3. For these reasons, the Government cannot accept the tabled amendments.

I move now to Amendment 79A, which proposes the establishment of a new office for the national security whistleblower. I am grateful for the indication from the noble Lord, Lord Ponsonby, that he will not be pushing the matter to a vote but let me outline the government position in relation to that. This proposal differs from that debated in Committee in this House. The Government’s view remains that such a role is not required in relation to these offences. As I set out in Committee,

“The Government are committed to ensuring that our whistle- blowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.”—[Official Report, 18/1/23; col. 1913.]


We have just debated how the Bill targets hostile activities for and on behalf of foreign powers. I have been explicit that this legislation is not targeting the genuine work of journalists. By extension, it is therefore clear that the Bill does not target genuine whistleblowing. Consequently, a whistleblowing office in relation to this Bill misunderstands the aims of the legislation. Again, I refer the House to the Committee stage, when I and the noble Baroness, Lady Manningham-Buller, set out the options available where an individual has a genuine need to raise a concern and I shall not repeat those here. The Government are committed to ensuring that these channels are safe, effective and accessible. For these reasons, we cannot accept the tabled amendments. I am grateful to all noble Lords for their contributions.

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[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on these amendments, and I have also spoken with the High Commission; my noble friend Lord Purvis has spoken to both the Minister on the Front Bench and to the noble Lord, Lord Ahmad, in the Foreign Office. If I have an interest to declare, it is that 25 years ago I worked on the Cyprus conflict and discovered a fair amount about the complexities of Cypriot politics—and they are no less complex today than they were then.

I will make a number of domestic comparisons. This is in my experience very much a Home Office Bill; it does not appear to take into account diplomatic niceties or the sensitivities of other states. We have some bitter experience in this country of sensitivities about sovereignty and the attempts by other states to exert legislative authority over this country, in relation to the EU. We are still being told that the European Court of Justice has imperial ambitions, and that we had to regain our sovereignty because it was trying to legislate for us, about our country.

Beyond that, of course, we have US bases in this country. I am very familiar with RAF Menwith Hill, which is close to where I live in Yorkshire, and I know a fair amount about RAF Mildenhall. The Minister will remember that when it appeared that the wife of a US serviceman at RAF Mildenhall was trying to evade British law by claiming diplomatic immunity and then going to the United States, there was a campaign of outrage in the Daily Mail, the Daily Telegraph and others over this incursion into British sovereignty.

I remind the Minister that the agreements between the UK and the United States over US bases in this country are extremely discreet: the details have not been published; they are renewed every 10 years without parliamentary debate; and the two countries negotiate quietly about the conditions under which they operate. They do not involve Congress legislating with reference to these extraterritorial bases in the United Kingdom. Indeed, if Congress were to legislate with reference to RAF Mildenhall, RAF Menwith Hill and other bases, I am sure that the Daily Mail, the Daily Telegraph and others would be outraged on our behalf at this apparent imperial incursion into British sovereignty.

I am conscious that Cypriot domestic opinion has as many elements, from the right to the left, as we have in this country. Of course, it would be a populist, nationalistic, mischievous campaign to provoke a public outrage in Cyprus about this apparent incursion into Cypriot sovereignty, but we in Britain now have some hard-won and bitter experience of how easy it is for populist and mischievous politicians to cause nationalistic outrage.

These references are not necessary. Clause 97 is enough. I hope that the Minister will take advice and consider that the Government should withdraw the references to the sovereign base areas in these other clauses. I repeat: Clause 97 is enough. The good will of the Government of Cyprus, and of the public in Cyprus, is important to this country, and we should not offend them.

[Lord Murray of Blidworth (Con)]

My Lords, this group covers a variety of related topics. The House has heard only about the amendments pertaining to the sovereign base areas, but I will address the other amendments advanced by the Government. The group covers amendments to the meaning of “government department” and changes to Schedule 2 to the Bill, and it deals with the amendments on the sovereign base areas, which I will come to in a second.

I start with a query raised by the noble Lord, Lord Purvis, in Committee. The question at the time was whether the reference to “government department” in the meaning of “Crown interest” in Clause 7 may include the departments of the devolved Administrations. It is the Government’s intention that any reference to “government department” within Part 1 of the Bill, including those falling under “Crown interest”, applies only to government departments of the United Kingdom. This means that we are not seeking to extend the meaning of “government department” to the devolved Administrations. I hope that this goes some way to settling the noble Lord’s concerns.

The Government have also made a number of changes to Schedule 2 to the Bill. In Committee, they made an amendment so that the Bill makes explicit provision that a Schedule 2 production order can be made to a judge without the subject being given notice of the application in advance. Currently, sub-paragraph (d) of condition 5 of the search and seizure powers at paragraphs 9 and 25 of Schedule 2 outlines that this condition may be met if the service of notice of an application for a production order may seriously prejudice an investigation. Without further change, this condition is no longer operationally effective because a warrant for search and seizure would not be granted in instances where the use of a production order more generally, which had been given without notice to a judge, would prejudice an investigation.

This group of amendments therefore closes the gap by bringing condition 5 closer to the equivalent provisions of Schedule 5 to the Terrorism Act 2000, which sets out that the use of a production order would not be appropriate because an investigation may be seriously prejudiced unless a constable can secure immediate access to the material. It is important to stress that it has always been the Government’s position that the use of production orders should be considered in the first instance, resorting to a warrant where such an order is not appropriate to the investigation.

Finally, government Amendment 60 simply makes it clear that Acts of Adjournal made in relation to the production order powers in part 2 of Schedule 2 would be made by the High Court of Justiciary in Scotland. This is already the case within the current drafting, and we seek only to make this clear. Government Amendments 55 and 59 simply add the offences under Schedules 3 and 4—which were added to the Bill in Committee in the Commons—to the list of offences for which the powers of entry, search and seizure in Schedule 2 are not available.

I now turn to the amendments tabled by the noble Lords, Lord Anderson of Ipswich, Lord Carlile of Berriew and Lord Wallace of Saltaire. These amendments seek to remove references to the sovereign base areas from the prohibited places provisions in Clauses 7 and 8 of the Bill. The sovereign base areas are critical for UK defence and include a unique governance structure among the overseas territories given that the administrator, who is also the commander of British Forces Cyprus, has all the executive and legislative authority of the Government of the UK overseas territory.

[Lord Wallace of Saltaire (LD)]

Is the Minister classifying the sovereign base areas as having the same relationship with Britain as overseas territories? I was not aware that the SBAs were formally overseas territories.

[Lord Murray of Blidworth (Con)]

Clearly, the SBAs are a special structure, as set out in the 1960 treaty. As I say, they have a unique governance structure which I have already described. The unique context of the SBAs is precisely why we are including the option to extend the legislation to the SBAs in their entirety.

The thought behind these amendments is that the power in Clause 97 to extend the legislation to the SBAs is sufficient on its own. I understand the thinking behind this. However, these references are quite distinct and achieve different aims. References to the SBAs in Clauses 7 and 8 ensure that harmful activity taking place in respect of prohibited places will be prosecutable under UK law, in UK courts, only where it constitutes an offence under Clause 4. It is important to stress that the offence under Clause 5 cannot be committed in the SBAs, as this clause does not apply outside the United Kingdom. Similarly, the police powers under Clause 6 are conferred only on constables under UK law, and as such cannot be used in the SBAs. This inclusion of the SBAs maintains the status quo, given provisions of the Official Secrets Act 1911, which already cover prohibited places in the SBAs as part of His Majesty’s dominions.

Clause 97, however, creates a power to extend any provision in Part 1 of the National Security Bill, with or without modification, to the SBAs. Should the power be used, the provisions will then form part of SBA law, and this would allow harmful activity to be prosecuted in SBA courts. Removing references in Clauses 7 and 8 to the SBAs would mean that those sites were no longer protected under UK law. That would reduce the protections currently afforded to them under the Official Secrets Act 1911, which will of course be repealed through this Bill. Furthermore, it is critical that these protections are afforded under UK law given that there is no guarantee that an Order in Council would be made so as to extend this part of the Bill to SBA law, leaving those sites potentially without any legislative protection. To reiterate the point I made in Committee—

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[Lord Murray of Blidworth (Con)]

The point, as the noble Lord will appreciate, is that the Bill should endeavour not to leave any potential vacancies which would potentially deprive the SBAs of applicability to this very important statutory provision. I reiterate the point I made in Committee that the Government consider that any references in the Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty, concerning the establishment of the Republic of Cyprus, between the United Kingdom, Greece, Turkey and Cyprus.

To address the point raised by the noble Lord, Lord Wallace, I can confirm that the Foreign, Commonwealth and Development Office and the SBAs were consulted extensively throughout the Bill’s development and agree on its conclusion. I therefore disagree with the noble Lord that relying solely on Clause 97 would cause no harm.

I hope this explains the need to maintain the references in Clauses 7 and 8 and why the Government cannot accept the tabled amendments.

[Lord Anderson of Ipswich (CB)]

The Minister has given us an explanation and I accept that the reference to a constable is to a United Kingdom constable, but Clause 6 gives the constable the power to clear people out of prohibited places. Why is it necessary for United Kingdom law to apply? Why is it not enough that this power should exist under the Order in Council applicable to the SBA? Since only the United Kingdom constable is covered in Clause 6, how can it possibly be necessary to define “prohibited place” for the purposes of Clause 6 as including places outside the United Kingdom? I just do not understand it.

[Lord Murray of Blidworth (Con)]

The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.

[Lord Purvis of Tweed (LD)]

The Minister was careful when he said that the SBAs and the FCDO were consulted by the Home Office on bringing forward this decision. I would assume that one department would consult another in its own Government with regards to a Bill—I think we can take it as read that the Home Office should have consulted the FCDO. The point that the noble Lord, Lord Carlile, made was that there was no consultation with the Government of Cyprus, which is embedded in the principles of the establishment treaty in 1960. That is why there is a problem with it.

With regards to the further point from the noble Lord, Lord Anderson, if it is only a UK constable, and only within UK domestic law, who enforces it within the SBA area? Who enforces it within the adjacent area to the SBAs, given that the measures are much wider than simply activities here in the UK? Who enforces it there?

[Lord Murray of Blidworth (Con)]

As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.

[Lord Carlile of Berriew (CB)]

My Lords, I am afraid I am very puzzled as a result of the Minister’s reply.

First, I think he was suggesting that the Government of Cyprus had been fully consulted. If he was suggesting that, all I can say is that that is the opposite of what I was told, and what the noble Lords, Lord Purvis, Lord Wallace and Lord Anderson, and everybody else who has been spoken to has been told. Secondly, why did the Government change Clause 97? Clause 97 provides for the powers earlier in the Bill to be operated within the SBA following an Order in Council. Are the Government saying that the justice provisions in the SBA are inadequate in some way? I can tell your Lordships that those of us who live around the legal profession know an awful lot of people who go and do cases and even sit as judges in those places, and that is not what they have found on the whole.

I would suggest that the Minister’s reply was insensitive—if I can be forgiven for using that word—and injudicious, and I invite the Government to consider it between now and the coming into law of this Bill. I am not going to press this to a Division tonight; I am not going to ask for the opinion of the House. But I feel a strong sense of dissatisfaction at the explanation, such as it is, that has been given. I beg leave to withdraw the amendment.

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[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.

I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.

The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.

The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.

I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I wonder if he might be able to address my point—which I remind him is the only point that I made?

[Lord Murray of Blidworth (Con)]

I certainly addressed the point which he generously made praising the Government for our amendments. The point that he raised in relation to the Labour amendment, on the basis that there is no timeframe in the present amendments, is not valid in the Government’s submission, because the Labour amendment itself does not contain any binding requirement on the laying of reports. In our submission, that would remove a level of flexibility. In the area of national security, it is important not to hedge about these kinds of provisions with time requirements. For those reasons, we do not believe that the amendment is necessary. I hope that answers the noble Lord’s question.

[Lord Purvis of Tweed (LD)]

I know that this is Report and we do not have to and fro, but I was making the point that it was an omission in the Government’s amendment. It is utterly open-ended as to whether the Secretary of State will lay the report from the independent reviewer before Parliament. I was seeking clarification from the Minister that that would not be the case.