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.