National Security Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[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.

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

My Lords, I thank noble Lords for their broad support for the Bill and the noble Lord, Lord Marks of Henley-on-Thames, for introducing these amendments.

The test that a person

“knows, or ought reasonably to know”

the effect of their conduct recurs throughout the offences and measures in Part 1 of the Bill. Failing to include an element of objectivity in this test would risk seriously undermining the offences and not criminalising behaviour for which we consider individuals should be culpable. Those conducting state threats activity are likely to be skilled at their tradecraft and will be adept at hiding their activities from our intelligence and law enforcement agencies. It is important that we do not hinder our ability to prosecute in these cases.

We consider that knowledge is an appropriate threshold for these offences and the foreign power condition. However, we believe it is also right to include constructive knowledge in these provisions. Given the seriousness of the offences to which this test applies, it is essential that an element of objectivity is included to ensure that offences can still be prosecuted where individuals are unjustly claiming not to have known the relevant consequences or circumstances. It is, of course, right that those who could not have seen those consequences or circumstances should not be criminally liable under these offences.

I think it is helpful at this point to draw noble Lords’ attention back to the 1911 Official Secrets Act, which we are replacing with this Bill. The offences under that legislation cover certain actions, such as obtaining information, by a person

“for any purpose prejudicial to the safety or interests”

of the United Kingdom. Those offences require a no-fault element to be proved in relation to the prejudice to the safety or interests of the state. The proposed amendments to Clauses 1, 4 and 12 contain the same requirement for prejudice to the safety or interests of the United Kingdom, but, importantly, and as recommended by the Law Commission, introduce a subjective fault element. We agree with the Law Commission that these offences should contain a subjective fault element. Crucially, the offences would not capture a person who genuinely could not reasonably have known the effect or nature of their conduct.

Perhaps I might provide a hypothetical scenario of how the proposed amendment could affect the foreign power condition in Clause 29. It is possible that an individual is unaware that they are working for an undercover foreign agent. The noble Lord, Lord Purvis of Tweed, made a very good point about the grey area in which much of this activity takes place. Let us imagine that the security services tell that individual that the person they are working for is, in fact, a foreign agent but the individual refuses to believe it despite clear warnings. At this point, it would be reasonable to make that individual culpable should they continue activities at the behest of the foreign agent, whereas it might prove difficult to successfully prosecute the individual if knowledge had to be proved.

To be clear, the individual in this example would still need to meet all the other tests in any given offence to be charged with that offence. Meeting the foreign power condition is not in itself wrongdoing.

The same logic applies to other amendments tabled. In Clauses 3 and 15, I am sure the whole House would agree that it is not right that an individual should escape liability when they reasonably should have known that their conduct could assist a foreign intelligence service or that they were receiving a benefit from a foreign intelligence service. A purely subjective test would make these offences very difficult to successfully prosecute.

Constructive knowledge is applied by the courts in other circumstances and the Government are confident that this test is appropriate. There will be a range of culpability between those who have actual knowledge and those who should have known, but that is something that is appropriate for sentencing rather than conviction. I hope that goes some way to answering the question put by the noble and learned Lord, Lord Hope—ah, apparently not.

[Lord Hope of Craighead (CB)]

I want to make it quite clear that, for the reason that was expressed earlier, I do not object to the idea of objectivity here, because it is sometimes extremely difficult to prove that someone knew something. The phraseology being used is pointing in the right direction, but there are two different levels of knowledge. The first is the knowledge of the background facts, and then there is the knowledge that flows from the conclusion based on those facts. Both of those are built into the rather short phraseology of this clause.

Taking those as two separate things, I can agree that the conclusion to be drawn from those facts can be looked at objectively. My question is: how much is the prosecutor going to be dependent on imputed knowledge of the background facts? It would be consistent with some other contexts in which reasonable knowledge is used to say that you look to see what information is possessed by the individual. Taking that as a given, you look at what facts the individual knew, and then you look at the conclusion that ought to be drawn from those facts. I hope I have made it clear that there are two stages here and my concern is about the first stage—whether the clause is imputing knowledge to the individual which that individual does not have. If it is going that far, it is taking a very serious step.

[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.

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

My Lords, I shall certainly withdraw the amendment at this stage at the end of what I have to say, and will then consider it and my other amendments with the Minister and others between now and Report.

I am grateful for the incisive consideration of imputed knowledge by the noble and learned Lord, Lord Hope, supported, as I understood it, by the noble Lord, Lord Ponsonby, who clearly articulated the difference between the basic knowledge that you must have and the conditions for imputing knowledge. That is what the Government’s drafting of all these clauses in the Bill simply does not address.

My noble friend Lord Purvis of Tweed pointed out the very difficult coexistence of the Bill with the Official Secrets Act 1989, which I think the Minister accepted and said that we are going to come back to. It is difficult precisely because it is not simply a competition between offences that involve serving or former intelligence officers and those involving any person; it is also that there is a carefully defined defence under the Official Secrets Act that does not apply here, and the offences can be made out on the basis of imputed knowledge.

The point made by the Minister, that the requirement for actual knowledge might hinder prosecutions, would be a good one were it not for the fact that juries are very good at determining whether or not people who deny knowledge actually have it, as the noble Lord, Lord Ponsonby, pointed out. With the exception of the Clause 5 offence, these are all indictable-only offences, as you would expect, carrying very serious penalties. A defendant who denies knowledge will have that denial very carefully considered, and the underlying facts that he knew, or can be shown to have known, will be considered to enable a jury to decide whether he actually knew.

On that basis, I suspect that, at the end of the deliberations on the Bill, the House may well want to ensure that, for a conviction to stand, it is a question not of hindering prosecutions but of whether a conviction on reasonable evidence is a likely outcome. When that is considered, I believe that actual knowledge should be required, although I of course wish to consider this over the intervening stages of the Bill. On that basis, I beg leave to withdraw the amendment.

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[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.

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

My Lords, I entirely understand the position taken by the noble Lord, Lord Evans of Weardale, but, with respect, the fallacy that he falls into, and the fallacy into which the Government fall—the Minister has articulated it—is that, in the interests of being able to prosecute a wide range of activities, they threaten to lower the threshold for such prosecutions to a point where the responsibility for the decision on guilt lies not with a jury considering guilt or innocence but with those who decide to prosecute because they perceive a threat to the interests of the United Kingdom, and the interests of the United Kingdom are very wide.

I agreed with almost everything that the noble Lord, Lord Coaker, said; the one thing he did which I did not agree with was that he misquoted the Bill. The Bill is not about prejudice to the safety “and” interests of the United Kingdom. Everywhere that the phrase occurs, it says the safety “or” interests of the United Kingdom”.

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[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.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have participated in another lively and entertaining debate. Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2. Amendments 9 and 10 seek to narrow the definition of a “trade secret” so that it captures only information which is actually subject to measures to protect it. Amendment 11 seeks to expand the scope of a “UK person”. The Government reject these amendments and I will try to explain why.

The offence of obtaining or disclosing trade secrets targets threats designed to undermine our economic prosperity, tackling the whole-state approach to national security adopted by state actors. The Government believe that economic prosperity and national security are inherently linked. You cannot have one without securing the other, and Clause 2 seeks to protect both.

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[Lord Coaker (Lab)]

I am not going to disagree with the Minister, but on the question of the letter—and I am pleased that he is writing to me—could he put it in the Library, and do that with respect to all the letters, so that every noble Lord can see his answers to the various questions?

[Lord Sharpe of Epsom (Con)]

Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, that was another interesting debate. I am very grateful to the noble Lord, Lord Pannick, for defending the honour of the JCHR against a charge of naivety from the noble Lord, Lord Carlile, which I reject. I am sure that the JCHR is capable of understanding the noble Lord’s points.

As the noble Lord, Lord Pannick, said, there is a mischief here. As the noble Lord, Lord Macdonald, said, economic espionage can be against national security—and it can be, but I think that the Minister went further than that. He said that economic prosperity and national security were synonymous. That is a very broad assertion. For instance, the shareholders in Tesla apparently believe, because the share price of Tesla has dropped rather fast, that Elon Musk has neglected the economic prosperity of Tesla by his concentration on Twitter. I do not think that any of us would regard the share price of Tesla as affecting the national security of the United States. I believe that the Minister is wrong in saying that economic prosperity and national security are synonymous, but of course I accept that economic espionage can certainly damage national security.

As my noble friend Lord Marks said, my Amendment 8 intends precisely to put in a test or condition that the theft of a trade secret is prejudicial to the “safety or interests of the United Kingdom”, preferably with that term redefined by amendments from these Benches. Without that condition, as the noble Lord, Lord Pannick, said, Clause 2 does not belong in this Bill. I conclude that I am really not persuaded by the arguments against Amendment 8. When damage to economic prosperity is also harmful to national security, that would be satisfied, if a test of that was added—and I have not heard an argument as to why that test is missing from Clause 2. If the Minister is correct that economic espionage and damage to national security are synonymous, what is the harm of putting in a definition, as the amendment suggests? But I have not yet persuaded the Minister, or indeed some other Members of the House, so for the time being I beg leave to withdraw the amendment.

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[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.

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

I was going to ask the Minister something before he sat down, but he sat down so fast.

My concern with the Government’s approach, and the Minister’s approach in his response, is that it describes activities without reference to the legal definition of the activities concerned. Clause 3(1) involves the person committing the offence if the person

“engages in contact of any kind”.

Under Clause 3(4):

“‘UK-related activities’ means … activities taking place in the United Kingdom”.

It is not necessary to identify the service. As my noble friend pointed out, Clause 3(7) does not cover the private sector.

My amendments are very simple and very short, but even that raising of the threshold the Government resist. We are at a loss to understand why the Government are not prepared to bring a more forensic approach to the definitions in our criminal law. I quite appreciate and agree that the offence, in principle, of assisting a foreign intelligence service to the prejudice of the interests of the United Kingdom—which we say should be clearly defined—is a very important part of the Bill. But it is wrong to draft the law in such a way as to catch any conduct that attracts the displeasure of our intelligence services, our prosecuting authorities or government policy. It is important to define criminal conduct in such a way that it criminalises only conduct that ought properly to be a criminal offence when committed not only by United Kingdom citizens but by others who have absolutely no intention of assisting a foreign intelligence service to the detriment or prejudice of the United Kingdom. I beg leave to withdraw the amendment.