National Security Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

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

My Lords, this group of amendments simply raises two questions, which is why we put down two probing amendments. Clause 16 criminalises preparatory conduct for any offences under Clauses 1, 2, 4 or 12, but it does not cover preparatory conduct for offences under Clauses 3 or 5.

Clause 3, as noble Lords will know, is the offence of assisting a foreign intelligence service. It is not covered by the preparatory conduct offence, and we are simply at a loss to know why the Government deem it necessary to have an offence of preparatory conduct in relation to the protected information offence, the trade secret offence, the more serious of the two prohibited places offences and sabotage, but not in relation to assisting a foreign intelligence service. Can the Minister explain the Government’s thinking?

I do not believe that there is a need for a similar explanation for not criminalising preparatory conduct in relation to offences under Clauses 13 and 14, on foreign interference, or Clause 15, on obtaining benefits from a foreign intelligence service. That is because Clause 13 already covers preparatory conduct, because it refers to conduct or a course of conduct of which it, the conduct, forms part. Clauses 14 and 15 define the new offences in a way that states the criminal acts so tightly that they do not need a reference to preparatory conduct. Indeed, that would be inappropriate.

As for Clause 5, it may be that the reason for not making a separate offence of preparatory conduct for unauthorised entry to a prohibited place is that the Clause 5 offence is summary only and carries a maximum sentence of six months’ imprisonment. It may have been thought that preparatory conduct for such an offence was likely to be fairly nonspecific anyway. If the Government have other reasons for excluding Clause 5 from the ambit of the preparatory conduct clause, please may we know what they are? These are probing amendments, but I beg to move.

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

My Lords, Amendments 50 and 51 seek to expand the preparatory conduct offence by adding the assisting a foreign intelligence service or FIS offence, Clause 3, and the unauthorised entry to a prohibited place offence, Clause 5, to the scope of the preparatory conduct offence.

The Committee will be aware that, under Clause 3, the first offence, in subsection (1), applies where a person engages in conduct that they intend will materially assist an FIS in carrying out UK-related activities. The second offence, under subsection (2), applies where a person engages in conduct that it is reasonably possible may materially assist an FIS in carrying out UK-related activities. The person engaging in this conduct has to know, or ought reasonably to know, that the conduct is of this kind. The type of activity that could be considered to be preparatory acts relating to assisting an FIS are already sufficiently covered by the second offence under subsection (2) and also by the offence of obtaining material benefits from a foreign intelligence service under Clause 15.

Clause 5 targets conduct in a prohibited place which is unauthorised. The offence targets lower-level activity, such as knowingly entering a prohibited place without authorisation. This offence does not therefore require a purpose prejudicial to the UK to be demonstrated. I remind noble Lords that the purpose of Clause 16 is to allow the most serious state threats activity to be disrupted at an early stage. It would be disproportionate to include the Clause 5 offence under the scope of the preparatory conduct offence, given that the offence does not require any proof of intent against the United Kingdom and accordingly carries a lower penalty. As such, we do not consider that the inclusion of these additional offences to the preparatory conduct offence is necessary or proportionate to achieve the aims of the offence.

I hope that that answers the questions put by the noble Lord, Lord Marks. The Government therefore do not find the amendment to be necessary, so I invite him to withdraw.

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

My Lords, the Minister’s response on Clause 5 was precisely in line with the possibility that I adumbrated, and he has confirmed that, so I shall withdraw that amendment without hesitation. Of course, I shall also not move the other amendment, because it needs further discussion. However, at the moment I do not understand how preparatory conduct is covered by Clause 3 at all. Perhaps we can discuss that behind the scenes between now and Report. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

62: Schedule 6, page 114, line 14, leave out “sheriff principal” and insert “Sheriff Appeal Court”
Member's explanatory statement
This amendment corrects the definition of “relevant appeal court” in relation to appeals in Scotland.

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 62 is a minor amendment to Schedule 6 which covers detention following an arrest for foreign power threat activity. Included in the schedule are powers for the police to take fingerprints and samples—biometric data—from an individual in detention. Biometric data can be retained for three years, with the police able to apply to the court for that period to be extended. The police and the individual can appeal the decision on extension to a relevant appeal court. This amendment corrects a reference to the relevant appeal court in Scotland, which is currently defined as the sheriff principal. Sections 109 and 110 of the Courts Reform (Scotland) Act 2014 abolished appeals to the sheriff principal in civil proceedings, with appeals now made to the Sheriff Appeal Court. This amendment corrects this.

Amendment 73 is a consequential change to take account of the new offence at Clause 15: obtaining a material benefit from a foreign intelligence service. This was introduced in Committee in the other place, at which point the Committee had surpassed Clause 15. Clause 15(6) makes its own provision about when offences are committed outside the UK. I beg to move, thank you very much and wish you a happy Christmas.

[Lord Purvis of Tweed (LD)]

I wish the Minister and all other members of the Committee a merry Christmas and, in keeping with this Bill, a safe new year.