National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall be very brief. I thank the Minister for his explanation of the Government’s amendments. We recognise that they have come a long way since Committee. The amendments in this group seek to address the unintended consequences of offences for journalists and NGOs. Concerns have been raised throughout the Bill that the legitimate activities of journalists, such as the possession of leaked information, could lead to their prosecution. The main focus of today’s debate is Amendment 18 from the noble Lord, Lord Black. It aims to give a specific offence, whereas our Amendment 79B calls for an assessment of the impact of this group.

Given the significant concessions made by the Government, I will not divide the House on Amendment 79B and we will abstain on Amendments 18 and 72 if they are moved to a vote. However, I understand the point made by the noble Baroness, Lady Stowell, when she said that she would listen to the Minister, deliberate and see what will be done. I do not know whether the noble Baroness, Lady Jones, will press Amendment 18 to a vote even if the noble Lord, Lord Black, chooses not to. Either way, the Labour Party will abstain on those votes.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who have spoken in this debate for their very warm words. The strength of opinion highlights how important journalistic freedom is, and the Government take it extremely seriously. Whistleblowing will be dealt with in the next group, so if the noble Lord, Lord Purvis, allows, I will not deal with it in my response.

I am very grateful to my noble friend Lord Black for his amendment and for his general comments in support of this Bill. As I have said, we have listened to concerns raised by the media sector and noble Lords. The Government’s amendments are a direct response to them. I will endeavour to provide the clarity that my noble friend Lady Stowell asked for.

On my noble friend Lord Black’s amendment, the Government cannot accept a defence linked to the definition of a recognised news publisher. Rather than taking activity out of scope, the defence would act as a way for foreign powers, particularly those seeking to cause the UK harm, to avoid prosecution under this clause and engage in harmful espionage activity. If a journalist is deliberately colluding with a foreign intelligence service in relation to their UK-related activities, such as by revealing intelligence capabilities that could be exploited by that intelligence service, it is absolutely right that they should face criminal sanction.

I acknowledge that the amendment seeks to provide a targeted protection for journalists by referencing “a recognised news publisher”. The Government have serious concerns that any individuals working under the cover of journalism in foreign media organisations operating in the UK would be able to abuse this provision. Even if hostile state actors did not currently use journalistic cover to engage in espionage, having a defence such as this would almost certainly encourage them to do so. This defence would apply even if the conduct in question was probably against the public interest. This is simply not acceptable; it would give foreign states a back door to commit espionage. Accordingly, the Government cannot accept this amendment and I ask my noble friend not to move it.

However, I want to reassure the media sector that publication of an article that was critical of the UK Government, and which might incidentally be capable of assisting a foreign intelligence service, would not fall within the scope of this offence; nor would the handling of materials in the course of genuine journalistic activities, nor likely the other offences in this Bill. For an offence to be committed under Clause 3, an individual would need to engage in conduct intending

“to materially assist a foreign intelligence service”,

or know, or should have known given the information they had at the time, that it was likely that such conduct would do so.

The Government may profoundly disagree with the conclusions of some journalists, but we will not hide behind the criminal law to suppress genuine competing views and it is almost inconceivable that genuine journalism will be caught within the threshold for criminal activity. My noble friend raised some specific examples and there are many—for example, those relating Snatch Land Rovers a few years ago—but the Government do not consider that the publication of an article that was critical of the UK Government, and which incidentally might be capable of assisting a foreign intelligence service, would fall within the scope of this offence. I think it is worth repeating that.

Many of the examples that have been provided in various articles are stories which relate to terrorism. No journalist has been prosecuted for an offence under terrorism legislation. Even where examples are relevant to state threats activity, no journalist has been prosecuted for an offence under the Official Secrets Act. This Bill will be no different and the Government do not accept the view that it criminalises the activity described in the media.

The test of material assistance is key. To be “material”, the assistance to the foreign intelligence service must be important, considerable or in a significant way. As with all criminal offences, it is the specific circumstances of the case that will be important and will be a matter for the prosecuting authorities, but we would expect prosecutions to involve those with known links to foreign intelligence services, including evidence of a relationship, tasking or payment. Absent these links, the Government struggle to envisage even the most provocative piece of journalism meeting the threshold for the offence.

The noble Lord, Lord Purvis of Tweed, noted the Statement made last week on Iran International, and many noble Lords will have read it; it highlighted the potentially lethal operations of the Islamic Revolutionary Guard Corps taking place in the UK. Far from criminalising the important work of journalists, this offence is intended to protect Iran International, and others who live and work here, from such direct attacks on our people and values.

I turn to amendments tabled by the noble Lord, Lord Marks, with regards to security or defence interests under Clauses 1, 3, 4, 8, 12 and 14. These amendments seek to narrow the definition of “interests of the UK” to ensure a focus on the protection of national security and defence interests, alongside economic security interests. Similar amendments were tabled in Committee, so I will reiterate the concerns the Government continue to have with these changes, as they remain relevant. Narrowing the interest element to cover only security or defence interests significantly moves away from the “safety or interests of the UK” test that already exists and is understood within current espionage legislation. I am afraid these amendments move away from the status quo by creating a test with an unduly narrow focus on national security. While the noble Lord importantly made specific reference to interests pertaining to the UK in its economic security, these amendments continue to not include other critical UK interests relating to public health or, for example, the preservation of our democracy.

The noble Lord, Lord Marks, referred to the case of Chandler v DPP, as did his colleague the noble Lord, Lord Purvis. “Safety or interests of the UK” has been considered by the courts to mean the objects of state policy, determined by the Crown, on the advice of Ministers. We expect this interpretation to carry forward to the new legislation and there are safeguards in place to prevent the Government using this legislation inappropriately—for example, by deciding that somebody is acting against government policy but where there is no national security impact.

Each offence under this legislation includes a test that must be met in order for the offences to be committed. For example, for a person to commit a Clause 1 offence, they must obtain or disclose information that is protected for a purpose

“that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”

and the activity must be conducted for, on behalf of or with the intention to benefit a foreign power. This limits the type of conduct capable of being caught under this offence, and in particular the foreign power condition ensures that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.

I now turn to Amendment 72, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and signed by the noble Lord, Lord Pannick. The most concerning consequence of this amendment is that where a state threats actor, acting under a proxy, has been engaged in harmful activity, which was an offence under the Bill, they would not commit an offence even if it could be shown that they were receiving specific funding in relation to that activity from a foreign power. The House will note the references to “state threats”, “foreign powers” and “national security”. Much as the amorous adventures of Matt Hancock may be of interest, clearly none of those falls in the scope of this offence.

It is no secret that those with hostile intent try to hide their activities through genuine means, and through this amendment there is a real risk that they could operate through proxies in order to make it more difficult to be prosecuted. It is therefore clear to see that narrowing the scope of the foreign power condition will have a damaging impact across the Bill. The Government considers this amendment would create unnecessary loopholes for state actors to exploit.

I would like to remind the House that the Government amended Clause 31(2)(c) in the other place to put it beyond doubt that there needs to be a clear link between the conduct and any assistance or funding from a foreign power for the condition to be met. It is the Government’s view that this puts the focus on the foreign power, ensuring that financial or other assistance from the foreign power is caught only when it is provided to enable the person to carry out the conduct, not when it is just any financial or other assistance.

I would also like to make it clear that Clause 31(2)(d), which concerns activity carried out in collaboration with, or with the agreement of, a foreign power, requires the foreign power to be actively involved in that collaboration or agreement; it does not cover cases where a person’s activities align with state objectives. The Government therefore ask the noble Baroness, Lady Jones, not to press her amendment.

To conclude, as all speakers have noted, the Government have moved a very long way in ensuring that journalistic freedoms are not being unduly encroached in this Bill, so I hope noble Lords will accept our amendments and withdraw or not press theirs.

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[Lord Evans of Weardale (CB)]

If I am being invited to comment on whether I would support a different amendment, I say that might well be the case. However, I do not support the amendment that is before us.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, throughout the passage of the Bill, concerns have been raised that legitimate acts in the public interest could lead to prosecution under the Bill. The Government have insisted that a public interest defence could legalise instances of espionage or sabotage. The noble Lord, Lord Marks, has said that he will press his amendment to establish a public interest defence. While we in the Labour Party support this in principle, we believe that the amendment is too broad and that it could in effect legalise espionage. We believe that there need to be appropriate safeguards built into any future legislation.

Further to this, we believe that the amendment of the noble Lord, Lord Marks, fails to implement the Law Commission’s recommendations; that was a point made by my noble friend Lord West. I will instead press Amendment 18A, in the name of my noble friend Lord Coaker, to a vote; that is for a consultation on the introduction of a public interest offence, which we believe can establish some mechanism for addressing the concerns of the House. We believe that the amendment is a tighter and more focused approach than the alternative of the noble Lord, Lord Marks. To address wider concerns on whistleblowing, we have also tabled Amendment 79A to establish an independent statutory commissioner, although we will not press it to a vote in due course.

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Moved by

[Lord Ponsonby of Shulbrede]

18A: Clause 3, page 4, line 24, at end insert—
“(9A) Within six months of this Act being passed, the Secretary of State must consult, and publish a report of that consultation, on proposals for a public interest defence in relation to an offence under subsection (2).”Member's explanatory statement
This amendment requires the government to formally consult on the introduction of a public interest defence for offences committed under Clause 3(2).

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I wish to test the opinion of the House.

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[Viscount Stansgate (Lab)]

My Lords, I want to speak briefly to ask the Minister a question. I support what has been said by my noble friend Lady Hayter and the noble Lords, Lord Wallace and Lord Marks, but is Clause 32(1)(e) not possibly a case of government overreach? When it is listed that a political party involved in a Government of a friendly power should be included in the Bill in this way, does it imply that every member of that political party would be covered by this provision? Are we talking about the headquarters of a political party or the membership? That would involve so many people, I wonder whether the Government really mean to do that and, if so, whether they realise what an incredible extension and overreach that might represent.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a more wide-ranging debate than I was anticipating. The definition of a foreign power is an important issue. It was covered by the Minister in Committee, and I look forward to him expanding on what he said and particularly to address the points made by my noble friend Lady Hayter in her Amendment 74. I think I will leave it there because we have other business to deal with, and I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, and I will do my best to clarify all the points and answer all the questions that have been raised. First, I turn to government Amendment 76, which addresses concerns raised in Committee and in the report by the Joint Committee on Human Rights on the drafting of the third limb of the foreign power threat activity provision. This provision is a key part of the Bill which ensures that police have the powers they need in supporting investigations into state threats offences. The concerns raised were that support or assistance unrelated to the harmful conduct covered by foreign power threat activity under Clause 33(3) risked being caught under Clause 33(1)(c). That is not the Government’s intention, and this amendment puts it beyond doubt that the support or assistance must be in relation to the conduct covered by Clause 33(1)(a) rather than unrelated activity. I hope that addresses the concerns helpfully put forward by noble Lords in Committee and that this amendment is welcomed.

This group also includes Amendment 74 tabled by the noble Baroness, Lady Hayter of Kentish Town, and it relates to the meaning of a “foreign power”. The amendment seeks to remove

“a political party which is a governing political party of a foreign government”

from the definition. I would very much like to thank the noble Baroness for the constructive engagement we have had on this issue. I know her principal concern is with the effect of this clause on the foreign influence registration scheme, which of course we will be debating next week.

The foreign power condition applies right across the Bill and is crucial in order that the new offences in it, such as espionage, theft of trade secrets and sabotage, work effectively. Removing it here would remove it from those other offences too. The Government’s position, as the noble Baroness is aware, is that the inclusion of governing political parties addresses situations where there is a dominant political party, or parties, within a country, to such extent that it may be difficult to disentangle whether harmful activities have been carried out on the direction of the ruling party or the Government.

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Moved by

[Lord Ponsonby of Shulbrede]

80: Leave out Clause 56 and insert the following new Clause—
“Reviews of Parts 1, 2, 4 and 5(1) The operation of Parts 1, 2, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006 (review of terrorism legislation).(3) The operation of Parts 1, 2 and 5 must be reviewed by either—(a) the person appointed by the Secretary of State under section 36(1) of that Act, or(b) a different person appointed by the Secretary of State. (4) Reviews under this section must be carried out in respect of—(a) the 12-month period beginning with the day on which any section in this Part comes into force, and(b) each subsequent 12-month period.(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before each House of Parliament.(8) Section 36(6) of the Terrorism Act 2006 has effect as if the references to “expenses” and “allowances” in that subsection included “expenses” and “allowances” in connection with the discharge by the person or people of functions under this section.”Member's explanatory statement
This amendment would provide for the regular review of the operation of Parts 1, 4, and 5 of the Act as well as of Part 2.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will be brief. Amendment 80

“would provide for the regular review of the operation of Parts 1, 4, and 5 of the Act as well as of Part 2.”

Also in this group are government Amendments 81, 85 and 86. Of course, we welcome that the Government have engaged on the issue of oversight and introduced significant concessions. However, the purpose of Amendment 80 in the name of my noble friend Lord Coaker is to go further. On that basis, I beg to move.

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[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.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it was me who moved Amendment 80, which is the first amendment in this group. I thank the noble Lords, Lord Purvis and Lord Anderson, for supporting it. Regarding Part 5, which is covered by my amendment, the Minister described it as supplementary. Well, it may be supplementary, but it is very consequential, because it provides that the Government can make any consequential provision that is a result of this Act, and that consequential amendment can apply both within and outside the UK. It is very significant, even though the Minister may describe it as supplementary.

For that reason, and to provide a more comprehensive view of the Act, as it will be in due course, I wish to test the opinion of the House on Amendment 80.