National Security Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I rise to support my noble friend and have added my name to these amendments. I apologise to the Committee that I was not present at Second Reading. The Minister knows that I was in Malawi supporting the launch of a parliamentary programme and explaining to our colleagues in Malawi the benefit of line-by-line scrutiny of legislation, which I know the Minister will be relishing over these coming days in Committee. As my noble friends indicated at Second Reading, and as my noble friend has indicated today, we take threats to our country very seriously, and we will work constructively with the Government in the scrutiny of the Bill.

I was struck by the remarks of the former head of the SIS, Sir Alex Younger, when he gave evidence to the Public Bill Committee in the Commons and said that the need to address the changing threats was in front of us. He said:

“What I would call grey threats … often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason. My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; cols. 11-12.]


In many respects, it is that grey space that we are seeking to address. I understand the Government’s challenge ahead but, as my noble friend indicated, casting the net so widely without a sharp mesh, I am not sure we will have the kind of security the Government are intending for us to have in this area.

This will be very apparent when we get to Part 3, when it comes to foreign interference in the registers, and other parts. I know the Minister will be in listening mode for a lot of Committee, but I hope he will consider pausing at that part of the Bill for further consultation, because what was apparent at Second Reading—many other noble Lords have, I am sure, received representations from a wide variety of groups, as I have—is that more consultation on that part of the Bill is necessary. Pausing that and bringing it back for the economic crime Bill may be an appropriate way forward. That is a debate we are yet to have, but I just wanted to give the Minister foresight of the case we are making.

As my noble friend indicated—and I defer to his legal knowledge and that of others with extensive legal knowledge who will be participating in Committee—I am struck that because of the Government’s choice not to reform the Official Secrets Act 1989, we will have two competing offences with two contradictory defences. Under this Bill, as my noble friend indicated, anyone who discloses protected information is committing an offence. In the 1989 Act, if an intelligence officer or former intelligence officer discloses any information relating to security or intelligence, they can be imprisoned for up to two years.

Under this Bill, anyone disclosing protected information to a foreign power or a body under the authority of a foreign power faces life imprisonment. However, as my noble friend indicated, in Section 1(5) of the Official Secrets Act 1989 there is a form of defence:

“It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.”


There is no equivalent in this legislation, and I would be grateful if the Minister would outline in very clear terms why.

Part of the rationale given by the Minister in the House of Commons was that the difference between this and the Official Secrets Act is that with this, for any prosecution, three tests have to be met. I suspect we will hear quite a lot in Committee about the three tests. The Minister, Stephen McPartland, indicated that the three tests for someone to be prosecuted under this part of the Bill were,

“conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power.”—[Official Report, Commons, National Security Bill Committee, 12/7/22; col. 80.]

But “harmful activity” and “protected effectively” are not specified in the Bill and “benefits a foreign power” is not necessary in Clause 29.

Because of the breadth of Clause 29, in some areas it is opaque. For example, does someone have to prove objectively that they did not know they were providing a service to a foreign power because they were providing it for an authority of a power? That means that the objective test, on a subjective element under this clause, is problematic.

The Minister in the Commons was not clear with regard to what the three tests are, and Clause 29 is broad. It would therefore be preferable for there to be a far more objective approach, as there is in the 1989 Act, rather than what is in this Bill. On that basis I support the amendments in my noble friend’s name.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendments in this group, tabled by the noble Lords, Lord Marks and Lord Purvis, intend to tighten the scope of offences in Clauses 1, 2, 3, 4, 5, 12, 15 and 29. This is achieved in these amendments by leaving out

“or ought reasonably to know”

from the relevant clauses, meaning that an offence is committed under these clauses only if the person

“knows … that to be the case.”

The practical effect of these amendments is therefore that offences are committed only when a person knows that their actions are damaging. Given that the offences in the Bill could carry significant sentences, as we heard from the noble Lord, Lord Marks, the Committee is right to probe to what extent a person must know that they are committing such an offence, especially as it will otherwise be up to the courts to determine whether a person ought reasonably to have known that they were committing the offence.

However, it is not unusual for offences to be committed when a person ought reasonably to know. There is a recent example of this, which includes the Criminal Justice and Courts Act 2015. I was recently googling it, and it seems that the Act was passed by the coalition Government.

Further to this, if an offence is committed only when a person knows it to be the case that their actions are damaging, it could be difficult to get a successful prosecution. None the less, it is right and helpful that the Committee should ask the Minister to expand on the points we have heard in this short debate.

As the noble Lord, Lord Marks, said, juries often decide on the state of somebody’s mind when an action is committed, and the decision as to whether the defendant is guilty or not guilty can easily turn on their perception of the state of the person’s mind. The noble and learned Lord, Lord Hope, spoke about the difference between knowledge and imputed knowledge. As he said, it would indeed be helpful if the Minister could expand on the level of imputed knowledge that may be expected to secure a conviction.

The noble Lord, Lord Purvis of Tweed, reminded us of the complexity of dealing with “grey space”, as he referred to it. This is an opportunity for the Minister to try to clarify the situation so that prosecutions can be appropriately brought and reasonably thought to have secured an appropriate conviction.

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[Lord Sharpe of Epsom (Con)]

I thank the noble and learned Lord for that clarification. I do not think the clause is imputing that but I will read Hansard very carefully and, if I may, I will come back to him in writing on this point.

The noble Lord, Lord Purvis, will pick me up if I do not address the Official Secrets Act 1989, but that is due to be discussed in group 33 on a subsequent Committee day, so I ask if we can come back to that detail then, if that is acceptable.

[Lord Purvis of Tweed (LD)]

Of course, as long as it is on the basis of the point that my noble friend raised—that we will have two pieces of legislation. The 1989 Act will cover serving or former members of the intelligence services, but this Bill means that there will now be two competing pieces of legislation. I do not know which the Government intend will trump the other.

[Lord Sharpe of Epsom (Con)]

I understand where the noble Lord is coming from. I commit to making sure that we explain that in considerable detail at the appropriate time, if that is acceptable.

For the reasons I have given, the Government cannot accept the tabled amendments and I ask the noble Lord to withdraw.

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[Lord Beith (LD)]

My Lords, one of the considerations of the kind referred to by the noble Lord, Lord Carlile, is, of course, a fairly familiar debate parallel to this one which is about the economic well-being of the United Kingdom. Many of the powers exercised by security services can be exercised to defend the United Kingdom from physical threat, but they can also be used to defend the economic well-being of the United Kingdom. I have always been worried about the potential growth of that term, not its actual use. It is very easy to think of things that perhaps ought not to attract intelligence activity but which affect the economic well-being of the United Kingdom. The achievement by a particular firm of a particular contract in competition with another firm is a simple example.

We have some experience of trying to deal with this, and to move to an even wider definition of United Kingdom interests seems to me to open the door to criminal cases being mounted with serious potential penalties in circumstances which Parliament will not have envisaged, except in this short debate, when the matter arises in real life. I can see the intelligence agencies being put at some disadvantage by there being a suspicion that they can do things to favour one group of people over another in the economic interests of the United Kingdom or, as in this case, in the wider interests of the United Kingdom. There is a problem, and I think it needs to be addressed by tighter wording.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.

The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:

“safety or interests of the State”.

But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.

The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.

That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:

“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”


So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.

I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:

“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]


I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.

More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.

Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.

[Lord Coaker (Lab)]

My Lords, this is a very important group of amendments which in many ways goes to the heart of much of the debate that will take place on a number of amendments. It reminds the Committee that the heart of the issue is Clause 1(1)(b), which says that to commit an offence

“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.

Fundamental to that is that what we are discussing here, as the noble Lord, Lord Marks, ably set out, is what we actually mean by the interests and safety of the United Kingdom. It is to the great credit of our country that we can debate that here to try to decide what it should be.

I agree with the majority of noble Lords who have said that it is important that we try to understand how to make sure that defending the interests and safety of our country is about national security and defence. The noble Lord, Lord Evans, reminded us that there are grey areas in that respect. That is not a criticism of having the debate, but it means that we have to decide where we want to draw the line. I have mentioned this to the noble and learned Lord Hope, and I pray him in aid. He mentioned it with respect to the Public Order Bill, and again with this one. It is an abrogation of this Parliament’s responsibility if it does not seek to answer these difficult questions and just leaves it to the courts, saying that it is for the courts to decide and determine. We ourselves should try to give greater clarity to what we as legislators think that phrase actually means.

It is incumbent on the Government to say what they will do to try to define this, as Amendment 2 moved by the noble Lord, Lord Marks, and my Amendment 3 seek to do. Either they should say “We don’t need to do that”, lay out why it is not necessary for Parliament to determine it and why they think we should leave it to the courts, or say how we will get some sort of definition that makes sense and gives greater clarity. To be frank, that is a real problem for the Bill.

As the noble Lord, Lord Purvis, pointed out in his interesting and incisive remarks, along with other noble Lords, the Government say at paragraph 62 of the Explanatory Notes:

“The term safety or interests of the UK is not defined”.


They have already made up their mind that they do not need to define it. The basis of these amendments is that we think they do. We do not oppose the Bill or think it is not important that we protect the safety and interests of the United Kingdom, but somewhere along the line our Parliament should try to say what that means. The Government say in the Explanatory Notes that it is not defined and, as the noble Lord, Lord Purvis, mentioned,

“case-law has interpreted it as meaning, in summary, the objects of state policy determined by the Crown on the advice of Ministers (see the Court’s view in Chandler v Director Public Prosecutions (1964)”.

I remind noble Lords that in that judgment, the House of Lords—constitutional arrangements were different then—essentially rejected the idea that it was for a jury to determine or decide whether something was in the interests of the state. As Lord Pearce’s judgment stated,

“the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the opinion of a jury, to be.”

I am not a lawyer—I have been a politician all my life—but I would argue with that. It may be quite correct from a legal point of view, but sometimes Parliament has not caught up with public opinion or where people are. Often, juries are an important way of determining what the public think, and they work.

We have seen recent examples of that. The noble Baroness, Lady Jones, reminded us well of all the different issues that have arisen with protests. They are irrelevant to the Bill, but let me give another example: assisted dying. Time and again, juries have refused to convict on assisted dying, because they will not convict somebody in those terrible circumstances and do not believe that Parliament has caught up with the reality of where we are.

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[Lord Purvis of Tweed (LD)]

My Lords, I agree with the thrust of the noble Lord’s argument. I was just reflecting on the intervention by the noble Lord, Lord Faulks. Of course, the jury will have to reach beyond reasonable doubt whether the individual knew. The question is what the mechanisms are of proving beyond reasonable doubt that the person knew what those interests of the Government were, if those interests are not specific and linked to national security. If the Government have made a case that those interests are as broad as the Minister in the House of Commons indicated—that they were linked with public health or economy—that makes the task in the courts much harder, I would have thought. Therefore, it is in the interest of securing better prosecutions that those restrictions are on the face of the Bill, as the noble Lord, Lord Coaker, has indicated.

[Lord Coaker (Lab)]

That is quite right. As I said, the problem with the Bill is that there is no indication of what else may be covered by the “safety or interests” of the state, or what the limits of those terms might be. As I have been arguing, and as others have said, as well as the prevention of terrorism and espionage, they could extend to policies on energy, national infrastructure, the protection of water, power, food, health services, transport, law and order, organised crime and immigration controls. The extent of the powers that may be taken in the Bill could be used in relation to a wide range of state interests, not just state interests related to national security or to the defence of the realm. The interests of the state clearly are ensuring that we have enough energy, but should that be covered by a National Security Bill? These are questions that the Minister needs to answer, and it will be interesting to hear his answer.

I will make a couple of final remarks. Like many, I am somebody who has never read the Official Secrets Act 1911, but in preparation for Committee—and knowing the depth of knowledge, experience and wisdom that we have around—I thought it was necessary to make sure I was quoting. The Official Secrets Act 1911 says under “Penalties for spying”:

“If any person for any purpose prejudicial to the safety or interests of the State—”.


The Official Secrets Act 1911 says that it has to be for a purpose “prejudicial” to the interests of the state. Logically, should not defendants or people have the right also to argue that their act was not prejudicial to the state? The Act says that your act has to be prejudicial, so surely you have a right and a responsibility to prove that it was not prejudicial. That argument could take place within the courts or wherever. This argument about someone’s actions in relation to the safety or interests of the state, and whether they were prejudicial, needs some sort of definition. Without it, how on earth do we know whether somebody is going to commit an offence under this Act? It would be for somebody to interpret.

Can the Minister clarify what the Government mean by “safety or interests” of the state? Who determines what they are? How can anybody act against that in a way which does not break the law, whether it be through protests or actions? If I take action outside of an RAF base, protesting against it and trying to disrupt things going in or out, or if I am at the peace camp at Faslane, will that be classed as a protest? Where does it become something that falls foul of the Bill? In other words, where do you draw the line? That is an important question for the Government to answer.

My amendment and those put forward by the noble Lord, Lord Marks, and others say to the Government that it is not good enough just to say the “safety and interests” of the state. What does that mean? People have challenged that over the decades. They have stood up and said that the safety and interests of the state are something that they challenge or do not agree with. Through history, that is how progress and reform have taken place. At the time, those protesting, taking action or conducting various activities have sometimes been accused of undermining national security or acting against the interests of the state.

We do not want to pass a law which leads to more confusion or a greater inability for Parliament to say that these are the sorts of actions we mean. That is the whole point of the amendment from the noble Lord, Lord Marks, which I support. It says that if it does not relate just to defence and national security, where is the grey zone that the noble Lord, Lord Evans, mentioned? Where do we draw the line? As the noble and learned Lord, Lord Hope, keeps reminding us, we should not abrogate our responsibility on that. It is our fundamental responsibility to try to answer that question.

[Lord Sharpe of Epsom (Con)]

My Lords, once again, this was a helpful debate, as noted by the noble Lord, Lord Coaker. I thank all those who participated. These amendments seek to limit the “interests” element of the “safety or interests of the United Kingdom” test which applies to many of the clauses in Part 1. As noted by many noble Lords, this concept was explored extensively in the other place.

The majority of these amendments change the “interests” element to cover only security or defence interests. This moves away from the safety or interests of the UK test that already exists and is understood in current espionage legislation. Indeed, the Law Commission noted its support of the Government’s decision to retain this term. At the oral evidence session to the Public Bill Committee, it noted that

“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act”—

those of 1911 and 1920—and

“avoids what might risk being an unduly narrow focus on national security”,—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]

as the noble Lord, Lord Evans, noted.

The experience of the Government and the Governments of allied states is that espionage is frequently targeted at and can result in significant damage to all sorts of national interests, some of which may fall outside the scope of security or defence interests. Indeed, any attempt to narrow or define the interests to the UK risks creating a test that is quickly outdated, as the UK’s interests naturally and properly evolve.

A number of noble Lords referred to the Chandler v Director of Public Prosecutions case that was heard in this House in 1964. It concluded that the interests of the state meant the objects of state policy, determined by the Crown on the advice of Ministers. That is noticeably distinct from protecting the particular interests of those in office. I heard what the noble Lord, Lord Purvis, and others said in relation to the 2001 case. However, in answer to the noble Lord, Lord Coaker, the Government do not think it can be defined in legislation. It needs to retain flexibility for future threats as they evolve.

For this reason, it would also not be appropriate for the Secretary of State to attempt to define the UK’s interests in a Statement to Parliament, as in the proposed amendment to Clause 1. Notably, these amendments do not include economic interests, interests related to public health, as the noble Lord, Lord Purvis, noted, or interests related to preserving our democracy—to name just a few areas that would be overlooked by them. We know that these areas are targeted by hostile actors, and they should rightly be protected.

I was asked what safeguards are in place to prevent the Government using this legislation inappropriately—

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. I want to test the issue with regard to economic activity. If the Minister is saying that the Bill will be broad and go beyond national security economic activity, then presumably that brings into its remit all significant areas of major trade disputes where we have mechanisms for reciprocal action for penalising, having punitive tariff responses, et cetera, when effectively there is economic warfare. If the noble Lord, Lord Evans, and the Minister are correct, anyone involved in any trade competitor which is engaged in dumping or activity that may lead to reciprocal trade actions will now be under the remit of the Bill. It is criminalising an offence with potentially 14 years’ or life imprisonment, rather than going through the approach of what other economic trade activity is concerned. Part of the concern is that the Government will be able to decide that all these different areas would now come under the remit of the Bill.

[Lord Sharpe of Epsom (Con)]

If noble Lords will bear with me, I am going to address that point.

I was saying what safeguards are in place to prevent the Government using the legislation inappropriately—for example, by deciding that someone is acting against government policy but where there is no national security impact. Each offence under this legislation includes tests that must be met in order for the offences to be committed. For example, for a person to commit the 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, or on behalf of, or with the intention to benefit, a foreign power. The limits to the type of conduct that is capable of being caught under this offence, in particular the foreign power condition, ensure that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.

Additionally, Attorney-General consent must also be obtained before prosecution can be pursued for the majority of offences under Part 1—in the case of Northern Ireland that is the Advocate-General for Northern Ireland—and the Crown Prosecution Service must apply the public interest test.

I understand the intention of these amendments. I would say to the noble Baroness, Lady Jones of Moulsecoomb, that obviously individuals and groups might not agree with government policies, and the noble Baroness makes it very clear that she falls into that category on a regular basis, but they nevertheless represent the policy of the Government who have been elected to act for the country, and disclosing information to a foreign power can never be the right response to that.

As I say, I understand the intention of these amendments, but the Government cannot support them and respectfully ask for them not to be pressed.

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To be clear, meeting the definition of protected information is just one of three tests in Clause 1, all of which need to be met to bring a prosecution: a person must obtain or disclose protected information for a purpose that they know or ought reasonably to know is prejudicial to the safety or interests of the UK and the activity must be conducted for, or on behalf of, or with the intention to benefit a foreign power.

[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 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.

[Lord Purvis of Tweed (LD)]

I think my noble friend and I are reading the same version of the Bill, but I am not sure the Minister is. There is no reference to benefiting a foreign power with intent, so I hope that at some stage during Committee the Minister will be able to clarify this position.

[Baroness Ludford (LD)]

I thank my noble friend very much for that extremely useful intervention. I think we will have further discussion on this whole lack of precision in definitions in the Bill, especially considering the nature of the potential penalty: life imprisonment. You cannot afford to be vague about definitions in that context. In the meantime, I beg leave to withdraw my amendment.

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

I am bound to say that I discussed that before the noble Lord came in. Since, in my opening speech on the first group of amendments, I quoted specifically from the Long Title of the Bill dealing with Part 1 offences, I do not accept the criticism that I have not read it. Nor do I accept the criticism that it is apposite to threats that have nothing to do with national security, because the Long Title—which starts by dealing with Part 1, as far as the first semi-colon—is about making provision about threats to national security. My point is that, if you protect trade secrets in these very wide terms, it may include threats to national security, but it is not limited to threats to national security and it may go far wider.

It is not satisfactory for trade secrets to qualify for protection just because the information in those secrets might be reasonably expected to be subject to measures to prevent them becoming known generally. What would the measures be? Would they be imposed by a court, by government or by regulation? That is undefined. Perhaps the Minister, in replying, would explain what those measures might be. How does it help to protect trade secrets that are not subject to any protective measures, as the Bill specifically envisages? The clause raises far more questions than it answers.

[Lord Purvis of Tweed (LD)]

My Lords, I will very briefly follow my noble friends to agree with that proposition. There has been reference to the foreign power condition, and I will refer to that too.

First, I take the opportunity to say that I am grateful to the Minister for what he said to me earlier by highlighting Clause 29(5). Yes, it does include that the foreign power condition can be met,

“if the person intends the conduct in question to benefit a foreign power”,

without necessarily identifying that foreign power. However, that is not an exclusive meeting of the test, as my noble friend Lord Marks has indicated. The test can be met, for example, if one of two business partners who has some intellectual property or something of commercial value is in negotiations with, say, a sovereign wealth fund in the Gulf and then there is a dispute between the two business partners. While one wants to sell that to the sovereign wealth fund in the Gulf, the other says, “You can’t do that, because that is now in breach of the National Security Bill, because I believe that this is a trade secret.” That is because a foreign power, under Clause 30(1)(c), is

“an agency or authority of a foreign government”,

so a sovereign wealth fund seeking investment could be within that definition. Therefore, I have sympathy for the point made by the noble Lord, Lord Carlile, but a counterpoint has been raised by asking whether the Bill is the most appropriate way for national security to cover those aspects—and, on balance, I do not think that it is.

However, I agree with the noble Lord, Lord Carlile, that the acquisition, use or disclosure of a trade secret is unlawful where the acquisition, use or disclosure constitutes a breach of confidence in respect of confidential information. As I understand it, that was the thrust of his argument. That is also the law: we have transposed the Trade Secrets (Enforcement, etc.) Regulations 2018 into UK law, so we have that intellectual property legislation—including a nine-page trade secrets regulation. I listened very carefully to what the noble Lord said, and all of it, I think, is covered within existing legislation. The question then arises as to what the intent would be if one is either selling a trade secret or giving a trade secret to a foreign power to advance that foreign power.

That could absolutely be included in the Bill. The concern is that, given the way the Bill is drafted, so many other aspects could also be. That is the point we are trying to tease out: whether the Government intend that trade secrets are, as the noble Baroness indicated, some form of economic warfare, espionage or tactic. That is where the interest of the Bill should lie. It should not be the mechanism whereby trade disputes, commercial disputes or intellectual property disputes are resolved. Ultimately, that is where the Bill could be used. I do not think there are any in this Committee, but I am certain there are creative lawyers who might look for the most appropriate vehicle for the less appropriate cause. I am worried that the Bill would become one of those.

[Lord Coaker (Lab)]

My Lords, the amendments in this group relate to the new offences of obtaining or disclosing trade secrets. We support these new offences and agree that the Government should safeguard against threats to the UK’s trade policy. We see them as important amendments. None the less, we have had an interesting and important debate today. As the noble Lord, Lord Marks, has outlined, Amendments 8, 9 and 10 are about trying to understand why the Government believe that the offences need to have such a wide scope and whether narrowing them down would really have the unintended or bad consequences that the Government believe they would.

I have a couple of specific questions for the Government. The Bill says that there has to be a direct link to a foreign power, but suppose somebody obtains information such as a trade secret and sells it not to a foreign power but to a competitor business. Is that covered under the legislation? Is it the case that, under the Bill, to prosecute there would need to be a link from the individual to a foreign power and not just to a competitor within the UK?

The measures in Clause 2(4) to (7)—I think the noble Lord, Lord Wallace, referred to this in his Amendment 11—are really quite important. Why can the offence take place only outside the UK if it is in respect to possession by a UK national, as opposed to a UK national and/or a UK resident, or any other description of persons? Having talked about a narrow definition, I wonder why the Government have restricted the measures in subsections (4) to (7) to a UK national. I would be interested to hear the Government’s answer to that.

An interesting discussion and debate has taken place within the Committee about the JCHR recommendation. It is an interesting point that we will all want the Government to clarify. What is the Minister actually saying to the points from the noble Lords, Lord Carlile and Lord Marks, and the noble Baroness, Lady Ludford? The JCHR quite clearly states that:

“The theft of trade secrets that pose no risk to national security is more properly governed by the offence of theft (and other breach of confidence and intellectual property rules) than through new espionage offences.”


It would be interesting to understand whether the Government think the JCHR is wrong or whether it has a point. If the JCHR is wrong, why do the Government believe it is wrong? Maybe the points made by the noble Lord, Lord Carlile, have greater relevance with respect to this Bill. With those few remarks, I look forward to the Minister’s response.

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[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.

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We have proposed a modest amendment that it should be likely that there will be assistance. That is Amendment 13, and it is the minimum needed alongside our other amendments to the Clause 3 offence. We need to help to limit the ambit of the clause to fit the mischief at which it is aimed. I beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, I too have a question to ask about this. I thank my noble friend for introducing these amendments so comprehensively. My question relates to Clause 3(2)(a) because it is so broadly scoped.

I am fully aware that there are many extremely professional UK-based organisations that provide training, support, advice and consultancy on security matters. In fact, it has become part of an industry for those who used to serve in some of our Special Forces and intelligence industry. By and large, it is done extremely professionally, which is to their credit. However, under the Bill, presumably, all that activity now needs to cease because it is criminalised. A person will commit an offence where

“it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities”,

which would mean training within the UK. Therefore, any consultancy—for example, a privacy sector security concern that trains allies in the Gulf and carries out any of that activity here in the UK—presumably is now liable for 14 years in jail. Can the Minister clarify whether that is the case?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as the noble Lord, Lord Marks, mentioned, there should be a second amendment to go with Amendment 13. There is only one amendment in this group.

Clause 3 means that for the first time it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service. While the clause currently states that an offence is committed when a person engages in conduct that

“it is reasonably possible … may materially assist a foreign intelligence service”,

this amendment would mean instead that an offence is committed only if it is likely materially to assist a foreign intelligence service. The impact of the amendment is that it increases the threshold for the likelihood of whether an action assists a foreign intelligence service, reflecting concerns raised by the JCHR. As the noble Lord, Lord Marks, said, this would be punishable by up to 14 years’ imprisonment, so we look forward to the Minister clarifying why the offence is not more tightly drawn.

The noble Lord, Lord Purvis, raised a very interesting question about the large group of consultants with experience of the security services and forces who provide training to any number of actors across the world, and how they may be caught by this provision. I look forward to the Minister’s answer.

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 13 seeks to narrow the scope of the offence provided for in Clause 3(2). For brevity, I will refer to a foreign intelligence service as a FIS.

The Government reject this amendment because we do not consider it to be necessary. Clause 3(2) provides for an offence where a person engages in conduct which it is reasonably possible may materially assist a FIS in carrying out UK-related activities. Amendment 13 seeks to change this to “likely materially to” assist a FIS. We do not consider there to be a difference between the two terms. I recognise the spirit in which this amendment has been made, to raise the bar for this offence being conducted, but I assure noble Lords that for this offence to apply, a person not only needs to engage in the conduct that it is reasonably possible may assist a FIS but must know, or ought reasonably to know, that it will assist a FIS in carrying out UK-related activities.

To ensure that we do not capture legitimate activity, there are defences in Clause 3(7). Not only will we not criminalise activity conducted in accordance with an agreement to which we are a party—such as agreements with our Five Eyes partners based in the UK—but we will exclude law enforcement and others who are legally obliged under UK law to assist a FIS. That goes some way to answering the question asked by the noble Lord, Lord Purvis. Additionally, where someone with public functions—

[Lord Purvis of Tweed (LD)]

My reading of it is that, taking the defence in Clause 3(7)(b) as an example, if I was providing Special Forces training—unlikely though that might seem—because I have functions of a public nature, I would be fine, although I do not think anyone would wish to receive Special Forces training from me. I was asking specifically about UK private sector bodies—consultancies and those that carry out those functions. I am happy for the Minister to write to me if he does not have an answer now, but I do not think that private sector enterprises are covered by any of the defences in Clause 3(7).

[Lord Sharpe of Epsom (Con)]

My Lords, my reading of it is not the same as the noble Lord’s, but I will seek clarification and happily write to him on that.

The noble Lord, Lord Marks, raised a hypothetical about assisting foreign intelligence services. I am happy to provide a few more which may clarify the scope of this clause. Hypothetical examples of a person assisting a foreign intelligence service in carrying out its activities could include aiding intelligence-gathering operations or providing a financial benefit to a foreign intelligence service, or someone working for a foreign intelligence service to entice an individual into working for them. I hope that clarifies it to some extent.

It is important to note that the threat posed by espionage, as we have said in previous groupings, is constantly evolving. It is important that our legislative provisions withstand the test of time. We must safeguard against a rapidly changing and complex threat landscape in which foreign powers and their intelligence services use a whole-of-society approach to conduct hostile activity against the UK. That is why Clause 3 is such an important part of the Bill. We therefore reject this amendment and respectfully ask that it be withdrawn.

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[Lord Wallace of Saltaire (LD)]

My Lords, I have three amendments in this group. I suppose I should declare interests in relation to the amendments of my noble friend Lady Ludford. I have been stopped by the MoD police twice in my life: outside RAF Fylingdales when walking with a local Liberal Democrat councillor, and outside RAF Menwith Hill, where I had stopped to address a meeting of splendid Quaker women who constituted the Campaign for the Accountability of American Bases. We were watching American servicemen in the ceremony in which they took down the union jack. There are no British servicemen on the base most of the time.

I want to talk about the probing amendments I have put down on why the Crown dependencies and British Overseas Territories do not appear here. I explain my interest—and form—on this, which dates back to the Royal Commission on the Constitution of 1970-74, on which I was a very junior witness. I learned about the deep ambivalence surrounding the relationship between the Crown dependencies and the UK in particular, and about the British Overseas Territories.

I note that, in the Procurement Bill, which we have just passed through this House, the Crown dependencies are included under the definition of “a UK supplier”. However, under a number of other Acts that we have passed through this House in the last few years, they exclude themselves. They move in and out in various different ways.

In a number of these territories and dependencies, there are places of considerable concern to our security and interests: the Falkland Islands, the British Indian Ocean Territory, Ascension Island, Saint Helena, et cetera. The Crown dependencies I am much less sure about, although I know there is a Territorial Army base on Jersey. The last time I looked at the official Guernsey website, it still said that Guernsey’s contribution to British defence is the maintenance of the Alderney breakwater. That is a very interesting conceit. When, nearly 20 years ago, I asked the Ministry of Defence a Written Question on the importance of the Alderney breakwater, an official phoned me up to say, “We don’t understand your question”. On further investigation, he said that they had ceased to be concerned with the Alderney breakwater at the time of the Second World War.

There are many ambivalences here but surely, they should be part of this Bill. They are neither foreign nor entirely British. They are of importance to the UK, in financial terms and, when it came to the Falklands, in military terms. I am assured that there are some facilities on Ascension Island. There are certainly facilities on the British Indian Ocean Territory, although they are of course primarily American, and I think there are fewer than two dozen British servicemen there. However, they should be in the Bill and are not. I merely wish to ask why.

[Lord Purvis of Tweed (LD)]

My Lords, anybody watching a wonderful BBC documentary series about Ordnance Survey maps a few years ago would have seen the rather amusing part about a gap in the centre of London on the Ordnance Survey map as result of the Official Secrets Act. That was because it was forbidden to have the Telecom Tower on the map because it was a prohibited place for national security, so none of our foes were able to know where it was by studying the Ordnance Survey map. I hope that we avoid such absurdities with this Bill.

In Committee in the Commons, the Minister stated that there is not, nor will there be, a register of prohibited places. I hope the Minister can provide some more clarity with regard to that today. The offences under the Bill are so significant and potentially draconian that some of the issues that my noble friend Lady Ludford indicated might well come about, because the Minister in the Commons was unable to state in clear terms how people will know where a prohibited place is. Some might be perfectly obvious, such as some of the bases which my noble friend Lord Wallace approached with a Liberal councillor, but others are not. I understand entirely that there will be some areas where the Government do not wish to promote the activities or make it clear where they are, but how will they approach inadvertent activity, given that someone statically observing a prohibited place through an iPhone lens or a binocular lens could inadvertently be committing a criminal offence? I simply do not know how the Government intend to ensure that people are aware that they are potentially falling foul of this legislation.

Not only that but the Bill allows Ministers to move quickly to extend prohibited places. It does so by general description, as the Minister said in the Commons. Prohibited places do not have to be specified, as I understand it. They can be categorised, so that all areas that meet the general specification will become prohibited places. Is there a mechanism so that local authorities or local police are informed, even if no local communities are going to be informed? The Minister in the Commons said

“some sites will not want people to know exactly where they are and what they are doing because they will become targets. Once again, there is a balance to be struck in relation to provision for the intelligence community”.—[Official Report, Commons, National Security Bill Committee, 12/07/22; col. 107.]

Of course there needs to be a balance but, as with some other elements of the Bill, we see no other part of the balance. We see no mechanism that will protect the interests of people who are inadvertent.

The Government have also indicated that they might have to move very fast. There is of course merit in understanding that if there has been an alert about a threat, certain areas might need to be prohibited. I am not advocating it, but I am curious about the choice that has been made. The Government have not chosen to go down the route of the “made affirmative” procedure, which other legislation has if something has to be done urgently. They say that if there is a threat risk, to allow a prohibited place to be put in place they will bring it forward using the negative procedure and consult on it. It does not really ring true as far as how urgent a response that would be to a national security threat.

However, there are significant wider concerns when it comes to the powers that the Government are seeking. Where are the limits for the extension of prohibited places? Would it be, for example, that an immigration centre could not become a prohibited place under this Bill? Would it be that local government department buildings could not be prohibited places? What is the limit? Unless there is a limit, notwithstanding if there is an immediate threat—I think there are procedures anyway with regard to securing areas where the police think that offences are to be carried out, and for the safety of the public there are mechanisms that can secure places under existing legislation—how do we know how far Government want to extend those prohibited places? Unless we are clear, that raises the considerable concern that they can be used to prevent peaceful protest or concern.

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However, the Government are in agreement with the noble Baroness, Lady Ludford, and the Joint Committee on Human Rights that clear guidance is required for the police powers included within the prohibited places regime and in relation to the use of this cordon power. I would like to reassure the Committee again that my officials are working closely with the College of Policing to develop guidance for the police when exercising the powers under Clauses 6 and 11. Accordingly, I invite noble Lords not to press the amendments.

[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.