Police: Employment and Discipline

Lord Sharpe of Epsom Excerpts

Monday 9th January 2023 Lords Chamber

[Lord Campbell-Savours]

To ask His Majesty’s Government what plans they have to revise the (1) employment contracts, and (2) disciplinary regulations, for police officers.

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

My Lords, police officers hold a unique position in society and are therefore protected by a unique set of terms and conditions, which are enshrined in legislation. Regulations are updated regularly following consultation with policing stakeholders, and the Government have no current plans to revise that approach. In October, the Government announced a review into police officer dismissals, ensuring that the system is fair and effective at removing those who are not fit to serve.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, we have a virtual contribution from the noble Lord, Lord Campbell-Savours.

[Lord Campbell-Savours (Lab) [V]]

My Lords, following Metropolitan Police Commissioner Sir Mark Rowley’s powerful expression of concerns over the handling of police misconduct allegations and the need to sack the worst offenders—as well as similar comments from the formidable noble Baroness, Lady Casey, on the need for early dismissals, and, more recently, the shocking revelations from the noble Baroness, Lady Burt, about the six-stage, year-long police officer dismissal process—can the Minister explain why the whole police disciplinary procedure cannot be reviewed in line with those of other professions? With the worst cases, dismissal should come first. More widely, there should be a speedier appeal procedure.

[Lord Sharpe of Epsom (Con)]

My Lords, as I have just said, we announced a review into that in October. The terms of reference are under active discussion and will be published in the near future. I will just correct the noble Lord: there are not six stages to the dismissals process; there are actually only three in the performance regulations, but officers can appeal against the outcome of those stages. Accelerated hearings are often missed, but if there is sufficient evidence of gross misconduct and it is in the public interest for the individual to cease to be an officer without delay, the chief constable can hold or chair accelerated misconduct proceedings.

[Lord Lexden (Con)]

My Lords, is it not imperative to enable the Metropolitan Police Commissioner to sort out the terrible problems, about which he has spoken so fully, as soon as possible? No review—action, please.

[Lord Sharpe of Epsom (Con)]

As I have said, we will be publishing the terms of reference in that review very shortly. The current system provides routes for chief constables to dismiss officers through accelerated hearings, as I have just outlined.

[Lord German (LD)]

My Lords, His Majesty’s Inspectorate of Constabulary’s report, published last November, said that

“it is too easy for the wrong people both to join and to stay in the police.”

One of the recommendations was that any candidate for the police should have a face-to-face interview with existing police officers. When that was put to the Minister in the other House, it was said that there was an expectation that that would happen. Does the Minister agree that the inspectorate has put forward a requirement, not a recommendation, for some action to take place?

[Lord Sharpe of Epsom (Con)]

From memory, there is a face-to-face aspect to the vetting and interviewing process—if I am wrong on that, I will come back and correct myself. On the report to which the noble Lord referred, he will be aware that there is a requirement for policing bodies to provide a response to the recommendations in that report within 56 days of its publication. Those responses will be imminent, in that case.

[Lord Browne of Ladyton (Lab)]

My Lords, the Met’s own figures show that the number of officers suspended from duties on full pay has risen by almost 600% over the last three years. This excludes a growing number of others subject to management or restricted duties owing to concerns about their performance or conduct. This is not a statistical quirk but a consequence of systemic issues with the disciplinary procedures. This needs to be addressed urgently, because it affects forces across the country and compromises the safety of the people whom these police officers serve. We do not have time to wait for a review; it needs to be dealt with now.

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[Lord Sharpe of Epsom (Con)]

My Lords, I respectfully disagree. I think that the appropriate process is to review this and, as I say, the review was announced in October. The terms of reference are under active discussion and will be published very soon.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in view of all the legislation that we keep passing here, giving the police greater and greater powers, I would have assumed that there would be some urgency to this sort of revision. We need higher standards of discipline, self-control and integrity within our police forces if we are going to give them all these extra powers.

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble Baroness; we absolutely need all those things.

[Baroness Berridge (Con)]

My Lords, I am grateful to my noble friend for outlining that there is an expedited procedure in certain circumstances. However, can he please outline whether or not an officer is suspended, as is common in most professional situations, while that expedited procedure is undertaken?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know the answer to that; I will have to write to my noble friend.

[Lord Coaker (Lab)]

My Lords, the Minister will know that the majority of our police officers do a great job, often in the most difficult circumstances. However, we have seen a number of high-profile cases that have undermined the public’s trust and confidence in our police—cases such as that of Sarah Everard or even of the head of the police watchdog himself having to resign over historic allegations. Is not the question for the Government: what are they going to do to work with the police to restore the necessary public trust and confidence in our police?

[Lord Sharpe of Epsom (Con)]

I join the noble Lord in agreeing that we owe our police officers—the vast majority of whom do an excellent job—our thanks and praise. He will also be aware that there have been a number of reports published on these subjects. The police forces will be coming back imminently with their responses to the HMICFRS report, to which I referred earlier. As I said, I think the report specified that it will be within 56 days. It is absolutely incumbent on the Government to work with all police forces to ensure that they deliver the highest possible standards.

[Lord Watts (Lab)]

My Lords, is it not the case that there are three stages, but there are three appeals, so there are six stages, which is why the process takes so long? Can the Minister confirm that the terms of reference will include the time it takes to go through the procedures, so that they are speeded up, and that that will be an important part of the review?

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[Lord Sharpe of Epsom (Con)]

I said earlier that this is under active discussion. I am not part of those active discussions, but I cannot imagine a set of circumstances where they would not be considering the speed of the process.

[Baroness Chakrabarti (Lab)]

My Lords, why has it taken from October to January just to come up with basic terms of reference? How long will it be before this review, whenever it actually begins, concludes, given the concern throughout the country and certainly across your Lordships’ House?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know why it has taken a couple of months to get to this stage, and I do not know how long the review will take, but I imagine that will be dealt with in the terms of reference.

[Baroness Blower (Lab)]

My Lords, significant concerns have been expressed in your Lordships’ House today about the fact that this has taken since October, so will the Minister undertake to write, and place a copy of the letter in the Library, to tell us how long he imagines this will now take?

[Lord Sharpe of Epsom (Con)]

I will go back to the Policing Minister, have a discussion with him and then write, based on that discussion.

Police: Appointments in PCC Offices

Lord Sharpe of Epsom Excerpts

Wednesday 21st December 2022 Lords Chamber

[Lord Lexden]

To ask His Majesty’s Government what plans they have to introduce legislation to prevent police officers facing serious misconduct proceedings being appointed to senior posts in the offices of Police and Crime Commissioners.

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

My Lords, police and crime commissioners are required by legislation to seek the views of their police and crime panel when appointing to senior positions in their office. The ultimate decision on appointment lies with the PCC as the directly elected local representative for policing. Former police officers or police staff members who have been dismissed and placed on the barred list are prevented from being employed or appointed by a PCC.

[Lord Lexden (Con)]

My Lords, what kind of system is it that permits a disgraced policeman awaiting a serious misconduct hearing to oversee the work of a police chief constable with an unspotted record? What kind of system is it that permits a police and crime commissioner to announce a serious misconduct hearing and then delay it indefinitely, even though the law requires it to start within 100 days, saying recently, and utterly bizarrely:

“It is complicated, it is interwoven with other things and there is order of things I cannot supersede”?


Is not a system that permits all this a gravely defective system? Is it not scandalous that the Government have done nothing to fix the defects, despite repeated calls from across the House, with the Home Secretary even refusing to discuss these matters with a small cross-party group?

[Lord Sharpe of Epsom (Con)]

My Lords, no, I do not believe that is the case. I will defend the system. On the second part of my noble friend’s question, arrangements concerning the establishment of a misconduct hearing are a matter for PCCs, and the management of the hearing itself is the responsibility of the independent legally qualified chairs. Legally qualified chairs must commence a hearing within 100 days of an officer being provided a notice referring them to proceedings, but may extend this period where they consider it in the interests of justice to do so. Decisions made within a hearing are done independently of PCCs as well as government. I think that answers the second part of my noble friend’s question.

[Lord Morris of Aberavon (Lab)]

My Lords, while I sympathise with the noble Lord, Lord Lexden, would not the best course be to revisit the Nolan principles—which I, with others, was charged by Prime Minister John Major with drawing up proposals to implement—so that anyone who falls below those more comprehensive standards would be barred from any public office?

[Lord Sharpe of Epsom (Con)]

My Lords, I take the noble and learned Lord’s point, and I agree: the Nolan principles should always be observed.

[Lord German (LD)]

My Lords, this Chamber has already decided that policemen facing charges should not escape those charges by resignation. Yet here we have a case of a new PCC appointing someone who is under investigation, and that investigation, as we have heard, has been delayed, in order to hold to account the chief constable. This just cannot stand. If you are appointed as a person to hold a chief constable to account and you yourself are under a sanction of gross misconduct to be heard, surely the Minister must agree that there should be regulations to avoid that circumstance. So, can he tell us what regulations are now going to be put in place in order to make sure this circumstance does not arise?

[Lord Sharpe of Epsom (Con)]

My Lords, the regulations already exist. In line with the provisions set out in Police Reform and Social Responsibility Act 2011, PCCs must follow the process set out: namely, they must notify the Police and Crime Panel of their proposed senior appointment. The panel must then hold a confirmation hearing and produce a report and recommendation regarding whether it supports the proposed senior appointment. The PCP must do so within three weeks of receiving notification from the PCC of the proposed appointment. This is all set out in statute, so the regulations already exist.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the noble Lord, Lord Campbell-Savours, is participating remotely.

[Lord Campbell-Savours (Lab) [V]]

My Lords, in light of the recent speech of the noble Baroness, Lady Burt, when she revealed the six-stage process governing disciplinary actions against police officers—I was shocked—should not the process be revisited in the way she and others are now suggesting? How can there be confidence in systems that protect rogue police officers, and their pensions, delay justice with prolonged processes, offer extended leave and rewards—[Inaudible]—Mike Veale, with further appointments? The Daily Mail should be thanked for its excellent reporting of these matters.

[Lord Sharpe of Epsom (Con)]

My Lords, it might help if I go into detail on the barred and advisory lists. Since December 2017, any officer, special constable or member of police staff dismissed is placed on the police barred list, preventing them rejoining policing in the future, and that includes PCC offices. Any officer who retires or resigns during a gross misconduct investigation, or before an allegation comes to light, is placed on the police advisory list. PCCs must consult the advisory list before appointing an individual, although inclusion on the list does not necessarily preclude employment. It will be for the PCC to assess.

[Lord Carlile of Berriew (CB)]

My Lords, does the Minister agree that the issues raised by the noble Lord, Lord Lexden, illustrate starkly the dysfunctionality of a police service that still consists of 43 territorial police forces, and that it is high time the service be restructured—for example, along the lines of the much more limited number of counterterrorism police services, which work very well across the existing boundaries?

[Lord Sharpe of Epsom (Con)]

The noble Lord makes some very good points, but they are slightly above my pay grade, as I am sure he will appreciate. There are 39 PCCs across England and Wales, with three mayors exercising similar functions; the City of London Police has separate set of rules and regs. In the main and for the most part, most of those people are doing a superb job and are held accountable by the public who elect them.

[Baroness Browning (Con)]

I advise my noble friend that I was the Minister who put police and crime commissioners on to the statute book in this House, opposed by all the Benches opposite at the time. I ask a question that has been asked previously in courts around the country: is this what Parliament intended? I do not think that Parliament ever did intend the current problem, clearly identified by my noble friend Lord Lexden, to occur, and I advise my noble friend the Minister to do all he can to ensure that a cross-party meeting takes place as soon as possible.

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[Lord Sharpe of Epsom (Con)]

I thank my noble friend for her perspective. Of course, I will take those points back, but I will again robustly defend the process that she put in place: I think it is working.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Government cannot continue to sit on the sidelines on this issue. The noble Lord, Lord Lexden, has repeatedly raised his concerns and the Government have chosen to sit on their hands. The Minister said that the regulations exist and are being followed, but is he satisfied with them? The current situation undermines the police in Leicestershire and the position of PCCs in general. Does he think the regulations need to be changed?

[Lord Sharpe of Epsom (Con)]

I certainly agree with the noble Lord that the current set of circumstances surrounding this individual case are absolutely disturbing. However, the regulations are still being followed and it would be entirely inappropriate of me to comment on an individual case.

[Baroness Butler-Sloss (CB)]

My Lords, if the regulations are in place, how on earth has this individual been appointed?

[Lord Sharpe of Epsom (Con)]

My Lords, that is a very good question indeed. As I have said, confirmation hearings must be held in public and then, as the directly elected local representative for policing, it is for the PCCs to make decisions about senior appointments to their offices. As I have said many times at this Dispatch Box, ultimately PCCs are directly elected by the communities they serve and it is the public who will ultimately hold them to account for the decisions they take.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my interests in the register regarding policing. This is one of the very rare situations where we have created someone who has a singular series of powers—on their own—and there is no mechanism, apart from one election every four years, to hold them to account during their term of office. Are the Government going to address that?

[Lord Sharpe of Epsom (Con)]

I imagine that the intent behind the noble Lord’s question is to ask whether we have any plans for a recall mechanism, for example. The honest answer to that is no. However, part two of the PCC review assessed the benefits and disbenefits of introducing such a mechanism, and the estimated average cost of a recall for PCCs was very significant and would require the creation of a bespoke national body. It remains for the electors to make their decisions.

[Baroness Berridge (Con)]

My Lords, my noble friend made mention of misconduct and the barred list. The Home Office holds a number of barred lists, so can he reassure your Lordships’ House that the people on the list in question are compared with those who are barred, for instance, from working with vulnerable people or with children, so that they are not going to slip into other professions? There should be a cross-referencing look at people who are barred from certain professions due to their misconduct.

[Lord Sharpe of Epsom (Con)]

I am afraid I do not have that information to hand, but I will happily write to my noble friend.

National Security Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I found this a fascinating short debate. It caused me to reflect on my time in this House, which has been a few decades now. Over 20 years ago, I remember sitting in on debates on treason in the Council of Europe, covering the way it would be addressed and the appropriateness of the death penalty within council member states. There were similar debates, although the debates regarding treason have evolved over those decades.

I thank the noble Lord, Lord Bethell, for raising this issue. He referenced the Policy Exchange paper; obviously, thinking is developing in this area, so it is appropriate to have this debate here in Committee. I want to pick up the last point made by the noble and learned Lord, Lord Hope, about the impact of the word “treason” and whether that actually deflects from the purpose of trying to fill the gap in the legislation identified by the noble Lord, Lord Anderson.

I listened to all noble Lords who spoke so interestingly in this debate. The noble Lord, Lord Carlile, made a point about the labels put on particular words and how that may influence juries, as in the example he gave. It caused me to reflect on when, as a magistrate, I was asked to convict somebody of a terrorism offence, which does not happen very often in magistrates’ courts. This particular terrorism offence charge was for graffiti on the Tube. The words used caused me and my colleagues to reflect on the appropriateness of that charge. I think the defendant pleaded guilty to that offence, so all we were doing was sentencing, but we had exactly that discussion about the appropriateness of words in particular contexts. I can see the argument that “treason” is so emotive that it could indeed affect juries’ likelihood of getting convictions.

As I said, this has been a very interesting debate. I have to say to the noble Lord, Lord Bethell, that some very serious points have been made against his amendment. Nevertheless, there is sympathy that there is a gap in the legislation, which may be filled in other ways.

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

My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a fascinating debate on a fascinating subject. I thank my noble friend Lord Bethell for introducing Amendment 37A on treason in his name and that of the noble Lord, Lord Faulks. I will now explain why the Government cannot accept the inclusion of this new clause in the Bill.

As noble Lords who are interested in this subject will have noted, the Government are looking closely at the issue of treason, as stated by the Secretary of State at Second Reading in the other place. The Government have been reviewing the case for and against reform of the UK’s treason laws and that review has not yet concluded. What we can say is that the UK has extensive terrorism laws—the “bristling arsenal” mentioned by the noble Lord, Lord Anderson—which protect the safety of the UK and its citizens from forms of terrorism which might be considered treasonous. However, it would be correct to assert that treason law is outdated and in need of reform in light of the growing threats from foreign state actors. To answer the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, the Bill provides a suite of measures for where somebody assists an enemy; it just would not be called treason.

I understand the significant history regarding the evolution of treason in the UK. Because of this, arguments have been made in this House and outside that an offence of treason goes further than criminal offences in relation to terrorism and state threats. Treason acknowledges the duty that a citizen has not to betray their state and many consider that a reformed, modernised treason offence would stress the importance of this through a specific criminal offence, reaffirming the bonds of citizenship that we have to the UK and to each other.

This amendment and others relating to treason have been proposed in previous Bills, but considering the role of treason in modern society is a substantial undertaking and one that we are looking at very closely. I acknowledge that this amendment and others seek to address concerns regarding the lack of a usable modern treason offence in the UK, so we welcome debate on this important topic.

Obviously, I reassure the noble Lords, Lord Bethell and Lord Faulks, and others that the Government do take this issue seriously and will listen carefully to the views offered by all noble Lords. However, as noble Lords may know, the Government are currently considering options for a formal review of this issue, including the possibility of the Law Commission conducting a review in this area. This area is complex, as the noble Lords, Lord Carlile and Lord Purvis, so eloquently explained.

I therefore thank my noble friend once again for his amendment but ask him to withdraw Amendment 37A while the Government’s review is ongoing.

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the thoughtful and detailed debate we have had on this amendment. I will address a few of the points—I cannot address all of them—and I will seek to be brief.

This amendment is not about the past—it is not about Clive Ponting or Lord Haw-Haw and what happened a long time ago—but about the future. The future has states that use as a strategy the suborning of our citizens as an important part of hybrid warfare, at a scale and with a sophistication that we just have not seen for more than a generation—for two generations—and which, given the way in which they do it, we have probably never seen before. That is why this amendment is important: it is to combat a strategic threat from our enemies.

It fills a gap. The suborning of our citizens is not wholly covered by everything in the Bill at the moment, but I take on board the points made by the noble Lords, Lord Carlile and Lord Anderson, and the noble and learned Lord, Lord Hope, and others on this. Duplication is not a sin in drafting laws. I have seen it happen before and I think that there is a gap that could be occupied by an amendment such as this.

A number of noble Lords asked what kind of attack this might cover. It would absolutely cover the contribution to a cyberattack. That is exactly the kind of modern warfare that our enemies are seeking to suborn our citizens to join in on, and therefore we should be thinking very much indeed about all the contributions our citizens could make to hybrid war when we are thinking about this.

As regards the impact on ISIS or a terrorist group, I completely agree with the noble Lord, Lord Carlile, that ISIS is not going to be intimidated. I am more worried about Kimberley—the person who does not know that they are doing something wrong by helping one of our enemies.

Lastly—I will try to keep my comments brief; I appreciate that I have not tackled all of the points—I confess for a moment here to a massive cognitive dissonance. Noble Lords and noble and learned Lords have spoken about their anxieties about the word “treason” as if it was a super-hot piece of vocabulary that was too hot to handle. I simply do not have that sentiment at all; it does not touch me in the same way that it clearly touches others. I thought the noble and learned Lord, Lord Hope, spoke very well about that. Words such as theft, rape and terrorism are important parts of our legal vocabulary. I regard treason as simply akin to any one of those, and the arguments made—

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Moved by

[Lord Sharpe of Epsom]

38: Clause 13, page 11, line 18, leave out subsections (1) to (11) and insert—
“(1) A person commits an offence if—(a) the person engages in prohibited conduct,(b) the foreign power condition is met in relation to the prohibited conduct, and(c) the person intends the prohibited conduct, or a course of conduct of which it forms part, to have an interference effect.(2) A person commits an offence if—(a) the person engages in prohibited conduct,(b) the foreign power condition is met in relation to the prohibited conduct, and(c) the person is reckless as to whether the prohibited conduct, or a course of conduct of which it forms part, will have an interference effect.(3) A person (“P”) commits an offence if—(a) P engages in a course of conduct with one or more other persons,(b) the foreign power condition is met in relation to conduct of P which forms part of the course of conduct,(c) P intends the course of conduct to have an interference effect,(d) as part of the course of conduct, a person other than P engages in prohibited conduct, and(e) P intends or believes that as part of the course of conduct, a person other than P will engage in prohibited conduct.(4) For the purposes of subsections (1)(c) and (2)(c) a course of conduct includes a course of conduct engaged in by the person alone, or by the person and one or more other persons.(5) Subsections (1) and (2) apply whether the person’s conduct takes place in the United Kingdom or elsewhere.(6) Subsection (3) applies whether P’s conduct or the prohibited conduct takes place in the United Kingdom or elsewhere.”Member’s explanatory statement
This amendment adds two new ways of committing an offence under Clause 13. Under subsection (2) the offence may be committed recklessly. Under subsection (3) it may be committed by a person where another person engages in prohibited conduct, if both are engaged in the same course of conduct.

[Lord Sharpe of Epsom (Con)]

My Lords, I turn to government Amendments 38, 40, 41 and 42, and Amendments 43, 44, 45 and 45A in this group, tabled by other noble Lords.

The government amendments to Clause 13 are vital to the utility of the offence of foreign interference and will strengthen our response to hostile attacks against our democracy and society. We must stand up to aggression against diaspora communities in the UK, as well as provide further safeguards to help promote a healthy democracy. The aim of the offence of foreign interference is to create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states that seek to undermine UK interests, our institutions, our political system or our rights, and ultimately prejudice our national security.

We know that states around the world, including the UK, conduct open and transparent influence activities, such as using diplomacy to shape and align policy to benefit shared interests. This is a welcome part of transparent international engagement and it is vital to the UK achieving its interests. However, some states seek to further their strategic interests by going further than overt political influence, such as through cultivating and manipulating relationships with individuals and entities in the UK where power and influence lies and using deception to shape public policy-making.

I will now provide further detail on the government amendments in this group. Government Amendments 38, 40, 41 and 42 deal with three key areas. They clarify the original policy intent in making provision for activity that forms a “course of conduct”, provide for the offence to capture reckless conduct, and, finally, provide definitions for the term “political process”. In addition, there are some minor and technical changes to give effect to the above. As regards the effect on the drafting, the original Clause 13 has now become three clauses. That is to make the provisions simpler with the changes that we have made.

On the amendments dealing with a course of conduct, noble Lords will note that the volume of changes appears substantial, but this is not a change of policy. Amendment 38 has given better effect to our policy intent in respect of third-party conduct. We must ensure that we capture scenarios where foreign interference is achieved through the actions of two or more people acting in concert, but where it cannot be proven that all individuals intended their actions alone to have an undesirable effect. A scenario could be where a person, P, works for a foreign power and intends to interfere with a person’s rights in the UK: for example, pressuring members of a diaspora community to stay silent on certain issues. If P subcontracts the prohibited conduct to another person—for instance, coercion of individuals—these amendments would allow us to charge P with an offence of foreign interference.

In respect of amendments to capture reckless conduct, we have carefully considered the comments made in the other place in respect of recklessness, as well as concerns from stakeholders, and consider it appropriate to add this offence. Not having recklessness leaves a gap where someone who is clearly aware they are involved in foreign interference activity but cannot be shown to have intended the relevant effects escapes a potential prosecution, for example because a person is motivated principally by money or a desire to get ahead.

Recklessness is a well-established and well-understood legal principle in the criminal law. A person is reckless when they foresee a risk that their conduct could, under this offence, cause one of the interference effects. A person must also proceed unreasonably in the circumstances with that conduct even when they are aware of the risks of continuing to do so. To be clear, this will not capture a person who has no appreciation of the risks at the time the conduct takes place.

Amendment 41 makes provision for a new clause which now includes the “interference effects”—previously in Clause 13—and adds a definition of “political process”, which will bring greater clarity to the scope of the offence. The interference effects have had to be amended to take account of the addition of reckless conduct. “Manipulate” has been replaced with “interfere” to recognise that a person cannot recklessly manipulate something. We have maintained the high bar to meet an interference effect.

The Government’s position is that the references to

“proceedings of either House of Parliament”

in the government amendment on “Foreign interference: meaning of interference effect” and in Clause 68 on the meaning of political influence does not, and could not, displace the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights, and is not intended to do this.

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[Lord Coaker (Lab)]

My Lords, we very much welcome Clauses 13 and 14—or however they are now numbered, given the Government’s amendments—as they introduce new offences of foreign interference, given the potential impact on our democratic processes at every level. That is a further reflection of the way that the Bill takes account of the new national security environment and the changing and emerging threats that we face.

As the Minister helpfully outlined, the main effect of the Government’s amendments will be to broaden the offences to include when a person acts recklessly. It appears that that has been brought in to reflect references to “recklessness” in other offences in the Bill and following debate in the Commons. That is very welcome. Can the Minister explain why it was not part of the original Bill, and what has caused the change of thinking in the department for it to bring forward these amendments?

I will also reflect on some of the discussion from the noble Lords, Lord Carlile and Lord Purvis, and others, on what is meant by proposed new subsection (2)(e), which refers to

“causing spiritual injury to, or placing undue spiritual pressure on, a person”.

For the benefit of the Committee, it would be helpful if the Government could say more about what they intend, what that encompasses and the thinking that lies behind it. That would be helpful to the Committee in the light of the various comments made.

We also support Amendment 43 from the noble Lords, Lord Purvis and Lord Wallace. We very much support the concept of an annual report on how these clauses protect the integrity of the UK’s democratic processes. I also understand and appreciate, as I think the Committee does, the Minister’s comment about how this is about protecting the country’s democratic processes from foreign interference, not from the normal democratic and political discourse that one would expect. I am particularly grateful for that, having been accused of being a communist and a member of the Revolutionary Socialist Party—I do not know whether anyone ever came across that in my file. More recently, for the new heads of various bodies, I have been called a traitor for my views on the EU referendum. So I stand here accused of being a communist on the one hand—in my younger days, it has to be said—and then having moved to being a traitor for my views.

The serious point I am trying to make, in a humorous way, is that political discourse takes place, as do debate and argument. It is really important for us to understand the difference in the Bill’s intention that the Minister pointed out. For that to be read into the record is really important so that it is not misunderstood; it is clearly not what the Government intend.

Amendment 44, in the names of the noble Lords, Lord Carlile and Lord Wallace, and of my noble friend Lord Ponsonby, is really important. It was very well articulated by the noble Lord, Lord Carlile, and the noble Lord, Lord Evans, said that he supports it. There are a lot of arguments for this amendment, but my view is the same as the point the noble Lord, Lord Carlile, made—a really important point, particularly at the current time when there is some disillusionment. Accepting Amendment 44 as part of the Bill would help enormously to instil public confidence, to ensure that people understand that our political parties not only are free from foreign interference through political donation but are seen to be free of it from their statements. Instilling public confidence on that is really important.

I move on to my Amendment 45, which is a probing amendment. I say to the Government that it is not necessarily intended to be added to the Bill, but it deals with an important aspect of this discussion. It is how to deal with the issue of informing the public about what we seek to do and the new threats that they face, and how we raise their awareness of them. There is also the crucial question of how this could be done in real time.

I use the example of Canada to cause us as a Committee to think. Canada has a Critical Election Incident Public Protocol, which lays out a clear and impartial process by which Canadians can be notified of a foreign threat to the integrity of an election. That includes provisions for informing candidates, organisations or election officials whether they have been the known target of an attack. It has processes which state how decisions are made, and by whom, and as to whether a public announcement should be made to alert people to the threat.

As I said, this is a probing amendment, and I am not an expert on the protocol. I am trying to understand the Government’s view. If we were to believe that foreign interference was taking place, at what point would they think it appropriate, relevant or consistent with the security of our nation for the public to be informed of that? I think the public have a right to be involved, potentially in live time.

I think this raises real difficulties. Let me create a scenario: a general election takes place—let us not use the next year or two; let us say in 10 years’ time—and the Government find that that election is being compromised by foreign interference. What happens? How does the Bill deal with that scenario? We are in Committee, which is when we look at detail. I think there is an important question for the Government about public involvement with respect to their knowledge and awareness of the potential for interference that may take place and what they have a right to know if the Government or the services come to a conclusion that there is foreign interference and that it may be compromising an election, whether it be a general election, a local election or some other part of the democratic process. I think that is an important part of this discussion. I think that, far from it being a weakness for the Government of the day, with the security services and others, to say that they are protecting the integrity of the democratic processes such is their importance, alongside that, should it be necessary for them to alert the public, they should have a system, or protocol to which they can refer, dealing with what the consequences of that would be.

This has been an interesting debate at the heart of another important series of amendments because they seek to protect our democratic processes from the foreign interference the Minister pointed out in his introduction. I look forward to his reply to not only my remarks but to the remarks of other noble Lords.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the notably unrevolutionary noble Lord, Lord Coaker, for his support for these amendments. I will address his precise question on whether the amendments on recklessness represent a change in government policy and why they are being introduced now. It was always our intention to capture malign foreign interference activity in all its forms with this offence. After the completion of the Bill’s passage in the other place and in light of the comments made in the Public Bill Committee on the lack of an offence that could be committed recklessly, we retested the offence against the operational and policy requirements and we saw that there were examples of conduct, such as where a person’s intention was not to cause an effect but rather to improve their status within relevant organisations of a foreign power, that were at risk of not being in scope for the offence. I hope that answers the question on why it is being done now.

The noble Viscount, Lord Stansgate, asked three specific questions about why recklessness is present in only one of these offences. The fact is that there are three different ways to commit the offence. New subsections (1) and (2)—inserted by Amendment 38—relate to a person’s intention, and only subsection (2) deals with recklessness.

Amendment 43 seeks to introduce a requirement for the Secretary of State to lay a yearly report, from the date of the National Security Bill gaining Royal Assent, assessing the impact which Clauses 13 and 14 have had on protecting the integrity of the UK’s democratic processes. This amendment duplicates one tabled in the other place. We do not consider it to be appropriate to introduce reporting requirements on the subject in isolation from the existing work on democratic integrity or in isolation from wider consideration of oversight and review mechanisms for the Bill.

Amendment 45 seeks to introduce a mechanism to alert the public to threats to the integrity of elections. We do not consider this to be necessary. Clauses 13 and 14 ensure that there are appropriate criminal sanctions for foreign interference. These provisions sit alongside other non-legislative activity. In advance of democratic events, His Majesty’s Government stand up an election cell to monitor and respond to any emerging issues during the election period. The election cell is led by the Cabinet Office and brings together government departments, the intelligence agencies, the devolved Administrations and external partners to ensure a holistic understanding of risks and to drive any necessary mitigations. The National Cyber Security Centre also meets regularly with the UK’s parliamentary parties and works closely with those responsible for core parts of the UK’s electoral infrastructure. Finally, formally established in 2019, the defending democracy programme is a cross-government programme with the overarching objective to safeguard elections and referendums and related democratic processes in the United Kingdom.

[Lord Wallace of Saltaire (LD)]

Several speeches have stressed the importance of informing and educating the public about the dangers of foreign interference in British elections. One of the reasons why people like me go on so much about releasing the additional information in the ISC Russia report is precisely to alert and inform the public. The amendment that the Minister has just been discussing is about alerting the public, in the course of an election campaign, if that should be a problem. He mentioned the defending democracy task force. I have found a small number of references to it, but it is not exactly a public body and what it does is so far extremely unclear. What about the public information and public education dimension of what we are discussing?

[Lord Sharpe of Epsom (Con)]

My Lords, I am dredging my memory a little bit here, but I remember the Security Minister about a month ago outlining much more about defending democracy. I will have to refer back to the comments he made in the other place, but I am pretty sure they deal with the questions that have just been raised by the noble Lord.

[Lord Coaker (Lab)]

I think this is a really important point about informing and alerting the public in live time. I would be grateful if the Minister could come back having reflected on that for us.

[Lord Sharpe of Epsom (Con)]

I will certainly have to read all the various information that I can find on the defending democracy programme, which I am pretty sure deals with most of the issues that have just been raised. If I am wrong on that, of course I will make that clear.

Amendment 44 was spoken to by the noble Lords, Lord Coaker, Lord Carlile, Lord Purvis, Lord Evans and others. The amendment seeks to enhance checks on the source of political donations in two ways. First, it seeks to introduce a requirement for political parties to release a policy statement to ensure the identification of donations from foreign powers. Secondly, it requires political parties to include in their annual statement of accounts a statement detailing their risk management approach to donations and the measures in place to prevent the acceptance of impermissible donations. While I understand the intent behind this amendment, let me be clear that UK electoral law already sets out a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections can make political donations and that political donations are transparent. Given that it has been spoken to by most speakers, I am going to go into a bit more detail on this, with the indulgence of the Committee.

Only those with a genuine interest in UK electoral events can make political donations. That includes registered UK electors, including registered overseas electors, UK-registered companies, trade unions and other UK-based entities or otherwise eligible donors, such as Irish citizens meeting prescribed conditions who can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations which are not from a permissible or identifiable donor. Failure to return such a donation, either to the donor or the Electoral Commission within 30 days of receipt is an offence and any such donations must be reported to the Electoral Commission. Furthermore, the Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.

It is an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already register donations over a certain value to the Electoral Commission; they are then published online for public scrutiny.

By requiring political parties to detail publicly their approach to mitigating the risk of impermissible donations, proposed new subsection (3) of the noble Lord’s amendment has the effect of providing such donors with the details of mitigations they need to overcome to make an impermissible donation. I am sure that is an unintended consequence, but it is important to oppose this amendment on the grounds that not only do the existing rules mitigate these risks but the amendment itself risks undermining the already strong rules.

[Lord Wallace of Saltaire (LD)]

My Lords, I apologise for intervening again. The Minister has not addressed the ease with which someone who has not lived in this country for three or more decades can now register, and the difficulty of verifying that they are who they say they are. If he will not address it now, can he write in detail to some of us, or perhaps invite us to a briefing, and make sure that that area will be tightened by the Bill?

[Lord Sharpe of Epsom (Con)]

My Lords, that is more properly a DLUHC area, in the light of the Act passed recently, but I will certainly have the conversation with my counterpart there and see what that Act says. I am not an expert on that Act, as the noble Lord will probably appreciate.

[Lord Purvis of Tweed (LD)]

We obviously have a difference of opinion as to whether the current system is stringent. I am curious why, if the trading arm of a political party was operating with a business that had any interest in one of the 26 countries in the money laundering and terrorist financing regulations, it would have to do due diligence, but if it received money that originated from such a country, it would not. Why does the Minister think that is acceptable?

[Lord Sharpe of Epsom (Con)]

As I outlined in my answer earlier, I believe this is a stringent regime. I am afraid there is a significant difference of opinion. It specifies that only those with a genuine interest in UK electoral events can make political donations. Any donations that are not permissible and not reported will constitute an offence.

I am afraid I will not address the comments by the noble Lord, Lord Wallace, about support for Mr Orbán over the Dutch and French; that certainly does not apply here. His Amendment 45A seeks to add requirements relating to proxy voting. It would be odd and somewhat undemocratic to seek to apply such measures solely to overseas electors, when the same issue could arise for domestic electors. In any event, proxy voters and those seeking to use a proxy are not in a position to determine whether someone is seeking to support a foreign power. It is an impossible ask of them. Adding such requirements risks disfranchising individuals by blocking their ability to find a proxy and undermining the very point of a proxy voting system.

[Lord Wallace of Saltaire (LD)]

My Lords, I apologise for intervening yet again. My point was simply that the level of controls and identity verification we have now introduced for domestic voters under the Elections Act is noticeably tougher than those for overseas electors. Given that overseas electors are also potential donors, this seems to be a hole that needs to be filled. The Minister says it does not need to be filled. That does not satisfy us.

[Lord Sharpe of Epsom (Con)]

I am sorry to disagree with the noble Lord, but on this one I do. However, I commit to discussing this further with my counterpart at DLUHC. I will come back to the subject.

Spiritual injury was raised by the noble Lords, Lord Wallace, Lord Anderson and Lord Purvis. I will commit to write on FCDO engagement on this subject; I do not have the answers to those questions. What is spiritual injury and why is it part of this offence? Basically, it mirrors the Elections Act 2022. The term “spiritual injury” covers the potential harmful impact on an individual’s spiritual or religious well-being that could be directly caused by another individual—for example, excluding a person from the membership of an organised belief system or banning them from attending a place of worship. The term “undue spiritual pressure” could include, for example, pressuring a person to commit an act by suggesting that doing so is a duty arising from the spiritual or religious beliefs that a person holds or purports to hold. In addition, “undue spiritual pressure” could refer to conduct by a person that alters, or has the potential to alter, a person’s spiritual standing or well-being.

Reference to “spiritual injury” already exists in the definition of “undue influence” as set out in Section 114A of the Representation of the People Act 1983. Undue spiritual pressure is a new element of undue spiritual influence in the clarified offence in Section 8(4)(e) of the Elections Act, as part of efforts to clarify what types of conduct amount to an undue influence. I hope I have answered that question.

For these reasons, the Government cannot accept this set of amendments. I ask the Committee to accept the Government’s amendments to improve the foreign interference offence.

[Lord Carlile of Berriew (CB)]

I am sorry to interrupt the Minister and am very grateful to him for giving way. On this question of spiritual injury, has the Lord Chief Justice been consulted as to whether he and the judiciary regard this definition as something that judges can sum up to juries in a clear way? Although the phrase exists elsewhere, it has not been litigated to any great extent and, without a consultation of the judges, may cause great difficulty.

[Lord Sharpe of Epsom (Con)]

The simple answer is that I do not know, but I will find out and commit to write.

[Viscount Stansgate (Lab)]

The question I asked related to the bit in brackets. What effect would there be if you omitted that part in brackets?

[Lord Sharpe of Epsom (Con)]

I think I have already answered in significant detail why that clause has gone into the Bill. I have also answered the specific points that the noble Viscount raised at the start of the debate.

[Lord Purvis of Tweed (LD)]

This is really important. As the noble Viscount pointed out, this is not about coercion of an individual but about putting into law “causing spiritual injury” to any person, ill-defined as that is, and not just the person to whom the effect of the interference relates. It is of significance that we would be putting in a very considerable offence of causing an undefined spiritual injury to any person. Can the Minister reflect on that and maybe come back to us in writing?

[Lord Sharpe of Epsom (Con)]

I have heard the feelings about this around the Committee, so of course I commit to do that.

Amendment 38 agreed.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

40: Clause 13, page 12, line 38, leave out from beginning to end of line 7 on page 13 and insert—
““interference effect” has the meaning given by section (Foreign interference: meaning of “interference effect”);“prohibited conduct” has the meaning given by section (Foreign interference: meaning of “prohibited conduct”).”Member’s explanatory statement
This amendment updates the definitions in Clause 13.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

41: After Clause 13, insert the following new Clause—
“Foreign interference: meaning of “interference effect”(1) For the purposes of section 13 an “interference effect” means any of the following effects— (a) interfering with the exercise by a particular person of a Convention right, as it has effect under the law of the United Kingdom,(b) affecting the exercise by any person of their public functions,(c) interfering with whether, or how, any person makes use of services provided in the exercise of public functions,(d) interfering with whether, or how, any person participates in political processes or makes political decisions,(e) interfering with whether, or how, any person participates in legal processes under the law of the United Kingdom, or(f) prejudicing the safety or interests of the United Kingdom.(2) An effect may be an interference effect whether it relates to a specific instance of a matter mentioned in subsection (1), or to the matter in general.(3) In subsection (1)(d) “political processes” means—(a) an election or referendum in the United Kingdom;(b) the proceedings of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru;(c) the proceedings of a local authority;(d) the proceedings of a UK registered political party.(4) In subsection (1)(d) “political decisions” means a decision of—(a) the government of the United Kingdom, a Northern Ireland Minister, a Northern Ireland department, the Scottish Ministers or the Welsh Ministers;(b) a local authority.(5) In this section—“Convention rights” has the meaning given by section 1 of the Human Rights Act 1998;the“law of the United Kingdom” includes the law of any part of the United Kingdom;“local authority” means—(a) in England—(i) a county council,(ii) a district council,(iii) a London borough council,(iv) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009,(v) a parish council,(vi) the Council of the Isles of Scilly,(vii) the Common Council of the City of London,(viii) the Sub-Treasurer of the Inner Temple,(ix) the Under Treasurer of the Middle Temple;(b) in Wales, a county council, county borough council or community council;(c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;(d) in Northern Ireland, a district council;“Northern Ireland Minister” includes the First Minister, the deputy First Minister and a junior Minister;“public functions” means functions of a public nature—(a) exercisable in the United Kingdom, or (b) exercisable in a country or territory outside the United Kingdom by a person acting for or on behalf of, or holding office under, the Crown;“UK registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000;“Welsh Minister” includes the First Minister, the Counsel General to the Welsh Government and a Deputy Welsh Minister.”Member’s explanatory statement
This new Clause defining “interference effect” replaces Clause 13(2) and (3). Subsection (1)(c) to (e) now use “interfering” not “manipulating” because of the introduction of recklessness in Clause 13, and political processes and decisions are defined. There are drafting changes consequential on Lord Sharpe’s amendments to Clause 13.

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.

Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

Lord Sharpe of Epsom Excerpts

Tuesday 20th December 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 17 November be approved.

Relevant documents: 19th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, keeping the public safe and protecting our national security is a key priority for this Government. It is vital that our intelligence agencies, law enforcement bodies and public authorities are able to exercise the important powers contained in the Investigatory Powers Act 2016, which I will refer to as the IPA. We rightly have in place world-leading standards on transparency, privacy, redress and oversight to accompany the exercise of these powers.

The regulations to be debated today will make two necessary amendments to Schedule 4 to the IPA. The first will implement changes to the communications data authorisation process for the UK intelligence community in order to implement the findings of a High Court judgment. This judgment was handed down in June this year in the case of Liberty v Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs. I will refer to communications data as CD and the UK intelligence community as UKIC.

This amendment will remove the power for UKIC to internally authorise the acquisition of CD for purposes which relate solely to serious crime, other than in urgent circumstances. In line with the court’s judgment, from 1 January 2023, it will be necessary for UKIC to seek authorisation for acquisitions of this type through the Office for Communications Data Authorisations, which I will refer to as the OCDA. The OCDA is part of the Investigatory Powers Commissioner’s Office, and its involvement in the authorisation process will ensure that an independent body has considered all non-urgent applications for CD.

For urgent applications, UKIC needs the ability to continue to self-authorise the acquisition of CD in such circumstances, because the OCDA is open only during normal office hours and our intelligence services need to be able to acquire CD at any time of day or night in urgent situations. This statutory instrument makes the necessary change to Schedule 4 to permit such urgent acquisition. Law enforcement bodies such as police forces are able to self-authorise urgent CD requests in the same way.

If this power is not in place, there is a risk of causing delays to UKIC’s operations, potentially putting the public at increased risk of serious crime. Additionally, these regulations will amend the Schedule 4 entry for the UK National Authority for Counter-Eavesdropping, which I will refer to as UK NACE. UK NACE was added to Schedule 4 in 2020, and these regulations do not change the powers afforded to it but make its designation more consistent with the approach taken for other similar bodies which form part of relevant public authorities for the purposes of Schedule 4 to the IPA.

It is opportune to make this small change alongside the other amendments to Schedule 4 to implement the High Court judgment. Per the obligations set out in Section 72 of the IPA, appropriate consultation has taken place with UK NACE, the Foreign, Commonwealth and Development Office and the Investigatory Powers Commissioner’s Office in advance of making this change. UK NACE plays a critical role in protecting our national security from state threats and other malign actors, and it is vital that it is equipped with the appropriate powers to carry out this activity effectively.

In summary, these regulations will enable UKIC and UK NACE to continue carrying out their statutory duties effectively, while ensuring that there is appropriate oversight in place to protect privacy. I hope noble Lords will support these measures and their objectives. I commend the draft regulations to the House and beg to move.

[Lord German (LD)]

My Lords, we support these regulations, but I have a number of questions to ask the Minister and would like the whole House to reflect on the way regulations of this sort are dealt with by the House.

Early in January, there will be a debate on two reports from this House on the way in which secondary legislation is dealt with by Parliament, particularly the House of Lords. This particular set of regulations—what I am about to say has no effect on them—come under the enhanced affirmative procedure, which provides for regulations being placed in a draft form so that Parliament can assess them and then request the Government to make changes in summary. They would then bring forward amendments to it. In this set of regulations such a requirement was not in place, because the committee that looked at them, of which I am a member, did not make any recommendations about changes that might be required.

However, there are two points in respect of the way that Parliament deals with these matters. The first is that when the enhanced affirmative procedure is required, there is no specification as to which committee of this House will look at them. I will raise that matter in January, but we perhaps need to consider it. At the moment, the Secondary Legislation Scrutiny Committee looks at them, but not necessarily so: it is simply because there was nobody else. In the other place, it is “other committees” that look at this procedure, which is quite strange.

There is no question that, because there is no recommendation from the Secondary Legislation Scrutiny Committee, this procedure would have to form the amendment. It is very important that we have that opportunity to make changes to the secondary legislation; it is otherwise a take-it-or-leave-it procedure. A detailed discussion has been going on in this House about this, as we find it very strange for a Parliament to give such power to the Executive without having the opportunity to properly scrutinise and make appropriate changes.

I would like to ask the Minister some questions. First, which bit of the EU law, which resulted in the High Court’s decision, was problematic? This was a compendium case taken to the High Court, in which the Government defended themselves. This was one of several elements, and the Government were defeated on this element on the basis that they were breaching that EU law. Is the Minister satisfied that the EU law itself is appropriate and will therefore not necessarily need to be changed? It provides some fundamental rights, particularly against what people call the snoopers’ charter.

My second question concerns the operation of the OCDA. It is rather strange that the Minister and his counterpart in the other place talked about the OCDA being able to deal with these matters only during opening hours. It strikes me as being rather like a pub: you have opening hours, you have to place your order, and you cannot put anything in if the doors are closed. The question therefore arises: if you are applying to the OCDA during opening hours, how long would it take to give an answer? Clearly, the issue of understanding and defining what is urgent is very important. Having a definition that says that it is urgent only if it is closing time or they are gone would not be wholly appropriate. I understand the urgent nature of the legislation, but perhaps the Minister could describe how long the OCDA would take to provide an answer in ordinary circumstances where there is not such urgency. With those two questions, I am pleased to support these regulations. I hope that we can delve more into the process in January.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for his opening comments. He has outlined what the statutory instrument does. These changes come as a result of the High Court ruling in June this year in the case of Liberty v the Secretary of State for the Home Department and the Secretary of State for the FCDO.

This SI will allow for the internal authorisation of the acquisition of communications data solely for serious crime purposes in urgent situations, as prescribed by Section 61A of the Investigatory Powers Act 2016. I understand that parts of the wider case were dismissed. However, the High Court ruled in favour of Liberty on one key point—namely, deeming it to be unlawful for the security services to obtain individuals’ communications data from telecom providers without having prior independent authorisation in certain circumstances.

In preparing for this debate, I read the blog of Neil Brown, who says he is an internet, telecoms and tech lawyer. He commented:

“I suspect, absent an appeal, there will be a tweak to the Investigatory Powers Act 2016, to provide for independent authorisation of requests by security or intelligence agencies before obtaining communications data, retained under Part 4 Investigatory Powers Act 2016, for the applicable crime purpose.”


This SI is indeed the tweak he refers to. He goes on:

“While important, this decision is unlikely to have a material impact on telecommunications operators, whether it applies to all communications data or only communications data retained by a telecommunications operator under Part 4. This is because it relates to what happens ‘behind the scenes’ before a Part 3 authorisation or notice is served on a telecommunications operator. The impact of a Part 3 authorisation or notice has not changed, nor has the obligation to provide data in response to a notice. I suppose that it might have an impact in the short term on the volume of requests, if OCDA”—


the Office for Communications Data Authorisations—

“is to have an increased workload—presumably, if that is the case, there would be a plan to increase OCDA’s staffing.”

My questions for the Minister arising from those comments are, first, does he believe that Neil Brown is accurate in his assessment that there is likely to be a lack of impact on the telecommunication operators through this SI? Secondly, is there a plan to increase the OCDA’s staffing if necessary?

We welcome the Government’s corrective action through this SI. We recognise that there needs to be an appropriate balance between our civil liberties and the fast-changing threats posed by serious and organised crime.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who participated in this short debate for their considered views on the regulations. To go back to where I started, it is vital that the public have confidence in the discharge of the important powers contained in the investigatory powers regime and that these organisations can carry out their statutory duties to keep us all safe.

The noble Lord, Lord German, asked me about the relevant pieces of retained EU legislation or case law that pertain to the High Court decision. These particular pieces of law are: the Parliament and Council directives—I shall not go into the numbers as there are a lot of them—as implemented in the UK by Parliament in the Privacy and Electronic Communications (EC Directive) Regulations 2003; Privacy International v the Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for the Home Department —again, a load of numbers which I will not bother repeating; and a third one which is in French, and I am afraid my pronunciation powers prevent me having a go.

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.

--- Later in debate ---

[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”.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Coaker (Lab)]

I will respond to the noble Lord. If I, in any way, gave the impression that I underestimated the significance or seriousness of what happened to Charlotte Lynch, that was certainly not my intention. I hope that most noble Lords can see the vehemence with which I support doing something about what happened to Charlotte Lynch and using that—if that is the right way of putting it—as a way of ensuring that the Government respond in a way that protects journalistic freedom across our country, whatever the circumstances.

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

My Lords, before I begin responding to the debate, I start by thanking the noble Lord, Lord Paddick, for his most gracious apology, which I am obviously very happy to accept. I also acknowledge that the debate in question was long, free-ranging and somewhat tortuous.

I thank all noble Lords for their contributions on Amendments 117 and 127A. I completely agree with much of the sentiment that has been expressed when speaking to the amendments, tabled by the noble Baroness, Lady Chakrabarti, and to which the noble Baronesses, Lady Boycott and Lady Jones, and the noble Lord, Lord Paddick, have added their names. As I made clear during the debate on the first day in Committee, I share the concerns about the recent arrest of journalists reporting on the Just Stop Oil protests on the M25. The Government are absolutely clear that the role of members of the press must be respected. It is vital that journalists can do their job freely and without restriction, so I agree completely with the noble Baroness, Lady Boycott, and my noble friend Lord Deben, that it is a vital part of our democracy that journalists must be able to report without fear or favour.

On the specific case of the arrest and detention of the journalists at Just Stop Oil’s M25 protest, I was pleased to see the independent review into the arrest and detention of the journalists that concluded on 23 November. The statement issued by Hertfordshire Constabulary confirmed that the arrests were not justified and that, going forward, changes in training and command would be made. It acknowledged that it was the wake-up call to which the noble Lord, Lord Coaker, referred. The review has proposed a series of recommendations which Hertfordshire Police has confirmed it is acting on. They include:

“A further review to ensure that any Public Order Public Safety officers and commanders who have not yet carried out the College of Policing National Union of Journalists awareness training are identified and do so within 30 days; Directions to ensure that all commanders have immediate access to co-located mentors”,


to the policemen who are logging activity,

“and public order public safety tactical advisors throughout operations”

and:

“An immediate operational assessment of the number and experience of the Constabulary’s cadre of Public Order Public Safety commanders.”


I hope that the noble Baroness was somewhat reassured by that statement and the confirmation from the constabulary that it clearly got it wrong in that case, as well as the mitigations in place to ensure that it does not happen again.

In answer to the noble Lords, Lord Faulks and Lord Coaker, the police make mistakes. We agree that it was wrong, but we do not legislate for instances where it was clearly a false arrest and, therefore, unlawful.

More widely, I seek to assure noble Lords that the police cannot exercise their powers in any circumstance unless they have reasonable grounds to do so. It is highly unlikely that simply recording a protest creates sufficient grounds for the use of powers. The College of Policing’s initial learning curriculum includes a package of content on dealing effectively with the media in a policing context. In addition, the authorised professional practice for public order contains asection on the interaction of the police with members of the media, including the recognition of press identification.

Both the noble Baronesses, Lady Fox and Lady Boycott, referenced SDPOs, to which we will return later. The noble Baroness, Lady Boycott, specifically asked whether attending two or more events might give cause to one. The answer is no, because they would not be causing or contributing to serious disruption. However, as I said, that is a debate to which we will return.

Therefore, I support the sentiment behind the noble Baroness’s amendment, but I do not think that it is necessary and respectfully ask her to withdraw it.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, and with my real thanks for the sentiment that he expressed, does he concede that public order powers in general are cast in broad terms? Charlotte Lynch was arrested for the offence of conspiracy to cause a public nuisance—a fairly broad concept—and a number of broad police powers and offences in the Bill are triggered by an undefined concept of serious disruption.

Does the Minister also concede that senior voices in policing have said that journalists who give the oxygen of publicity to protests are part of the problem? By giving publicity, they are feeding the fuel of serious disruption. I know that the Minister disagrees with that proposition but, given that there has been so much performative legislation, and that there is apparently disagreement in the policing world about what is and is not feeding a serious disruption, why would the Government not take this modest step to ensure that no one should be arrested for the primary purpose of preventing their reporting of protest?

As a point of clarification, the difference between Amendments 117 and 127A is not the class of people they cover; it is the class of activity that is being reported on. Amendment 127A is an improvement on my poorer drafting of Amendment 117 because it refers to reporting protests themselves and not just the policing.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Baroness that I do not agree with the proposition she just outlined from senior police officers. Having said that, I have not read those particular comments and cannot comment on the specifics. I go back to what I was saying earlier: it is not lawful to detain journalists simply there monitoring protests; it is against the law. The police made mistakes in these cases. As I said earlier, we agree it was completely wrong.

[Lord Deben (Con)]

Before my noble friend sits down, the fact is that what he says is true, but something has happened and therefore we have to react to it. For the Government to say that it is not necessary to do this does not mean that they need not to do it, if noble Lords see what I mean. It does not help for the Government to say that it is all okay because it was illegal. It happened and we know that it has happened on several occasions. It is also true that there appears to be among sections of the police a feeling that journalists make things worse rather than do their job. In those circumstances it is no skin off the Government’s nose just to say, “Right, we will put this in and that will make people feel happier and it will make us able to say to foreigners, ‘Look, we actually got this in the law. Not generally, but particularly, because it happened. Why don’t you do the same thing?’”

I do not understand this Government not taking easy steps that do not harm anybody. Just do it and do not constantly say, “Oh well, it’s all right.” It is not and we should do it.

[Lord Sharpe of Epsom (Con)]

I have to say to my noble friend: I hope I was not giving the impression that I was saying that it was all right, because it was not. I have acknowledged that it was wrong and the police made mistakes in this particular case. But, to go back to the point I made in response to the noble Lord, Lord Coaker, we do not legislate for instances where it was clearly a false arrest and therefore unlawful.

[Lord Paddick (LD)]

Will the Minister confirm that neither in his remarks nor apparently from what he said was the response of Hertfordshire police, was there any reference to the unauthorised detention of the journalist at the police station? The first thing that would have happened at the police station is that the journalist would have been asked to turn out their pockets, including their press pass, and yet they were still detained for five hours. What do Hertfordshire police and the Government say about a sergeant not at the scene of the protest authorising the detention?

[Lord Sharpe of Epsom (Con)]

Obviously, I defer to the noble Lord’s expertise on matters custodial, but—I am flying solo a little bit here—I imagine that, whatever the erroneous reasons given for the arrest, the custodial sergeant or whoever was in that position felt that some investigation was required.

[Lord Coaker (Lab)]

Does the noble Lord not realise how disappointing his response is in many ways? As the noble Lord, Lord Deben, just said, what happened in Hertfordshire was a real challenge to us to respond to something which seems to threaten journalistic freedom to report on protests. All of us are saying that, for the Government to turn round and say, “Don’t worry: it was a rare occurrence and it won’t happen again—no need to worry” with a shrug of the shoulders is just not the sort of response that one would hope to get from the Government. As I said, I do not believe we live in a totalitarian state, but every now and again a challenge emerges which threatens to undermine aspects of our democracy, and in this case it is journalistic and broadcasting freedom.

I think that we, certainly I, would expect the Government to reflect on what the movers of the amendment said and on some of the many moving speeches, including from my noble friend Lady Symons, and whether there is a need for the Government to act in order to protect one of the cherished freedoms that we have. I think that is what people in this Chamber—if I read again what the noble Lord, Lord Deben, said; the noble Baroness, Lady Boycott, made the point through her amendment; and I have tried to do it through the words that I have said—are expecting from the Minister, rather than simply, “Well, it was just one of those things that happened and it won’t happen again.”

[Baroness Jones of Moulsecoomb (GP)]

Very briefly, what concerns me about this—well, lots of things concern me—is that the police, including the custody sergeant, should have known it was an illegal arrest, but they must have thought they could get away with it. That really irks me. It is the thought that the police were so high-handed, and that is why it has to be explicit so that they cannot in any sense claim ignorance of the law.

[Lord Sharpe of Epsom (Con)]

My Lords, in answer to the noble Lord, Lord Coaker, I am getting a strong sense of how disappointing I am being, but it is also very fair to say that I have been completely unequivocal in sharing completely his concerns about the protection of our democracy and institutions. As I said earlier, it is a vital part of democracy, and I would expect and also demand, that protests are reported on fairly and freely. Of course I am sorry that the noble Baroness is irked, but I cannot second-guess what the police were thinking and I will not stray into that territory.

[Baroness Boycott (CB)]

My Lords, I thank the Minister for his reply to all the wonderful speeches, and I thank many noble Lords for speaking tonight in support of the amendment that the noble Baronesses, Lady Chakrabarti and Lady Jones, and the noble Lord, Lord Paddick, and I put forward.

What I want to say very much reflects what the noble Lord, Lord Coaker, was saying. I would call this the Government’s “bad apple” defence, which at the moment gets deployed all over the shop, whether we are talking about a single police officer who accosts a young woman at night with bad consequences or about a single police station in Hertfordshire. This is not about a bad apple; as the noble Lord, Lord Paddick, said, this is about a systemic situation, and as the noble Lord, Lord Deben, said, this has happened and it is now happening a lot more.

I suspect, although I am quite happy for your Lordships to disagree with me, that this is a lot to do with the climate and the feeling of people in a desperate situation who do not know what else to do. They end up gluing themselves to the road and they are seen as something extreme. That does not matter: it is still a protest, however annoying and nuisance making it is, and we can all debate that—but it is another debate. This is about the right to protest and the right of journalists to go to that protest and report on it. Journalists report on what human beings do. They report on people, what motivates them and what they care about, and what people are prepared to glue themselves to a road for or to padlock themselves to, or to climb Nelson’s column or whatever it happens to be.

The noble and learned Lord, Lord Hope, made the point about monitoring things across the world. We send journalists to monitor whether African countries are having free elections. How can we stand here and say that that is a good idea if, at the same time, someone reporting on a climate protest is chucked in jail? She was in a cell with a tin bucket as a lavatory for five hours. We are not talking about a quick slap on the wrist and “I’ll write you a letter later and send you a 30 quid fine”. This was a serious thing and it happened. We are therefore obliged to do something about it.

I come back to the “bad apple” defence. It is used by this Government over and over. They cannot use it in this instance and hope to hold their heads up high, or for people in this House to let them get away with it—we will not. I, the noble Baroness, Lady Chakrabarti, and others will bring this back on Report. We will work on the amendment, but it will fundamentally be the same. I am very grateful to all noble Lords who supported it. I beg leave to withdraw the amendment.

--- Later in debate ---

As the noble and learned Lord, Lord Thomas of Cwmgiedd, has said, there are better ways of approaching this—established ways of dealing with it—such as the example he gave of search warrants to ensure that we maintain the political independence of both the police and the Crown Prosecution Service, which will be the two main agencies involved in deciding whether unconvicted people should be made the subject of SDPOs, as we will get on to in the next group.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for the amendments in this group. I turn first to Amendment 126, which would require the College of Policing to publish guidance consolidating the public order authorised professional practice and NPCC and college operational advice for public order policing. The Government would be required to lay the consolidated guidance before Parliament and the guidance would need to be reviewed annually and updated when appropriate.

The noble Lord’s explanatory statement clarifies that this builds on a recommendation from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to the College of Policing. For the benefit of the House, when giving oral evidence to the Public Bill Committee, His Majesty’s Inspector Matt Parr has said of policing’s response to the report that it was

“the most professional and thorough response”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 55.]

he had seen to a report that he had done.

The college has drafted a new public order public safety authorised professional practice that is in the final stages prior to consultation, which precedes publication. A draft version will be published for consultation by public order practitioners by the end of December and the college plans to publish the final version in early 2023.

To provide further reassurances to all those present who have shown interest in public order guidance, noble Lords will perhaps allow me to detail some of the work that the college has undertaken beyond the authorised professional practice to improve public order training.

On guidance, the college publishes regular bulletins, including on changes to processes, legislation and new training products. Its summary guide to the Police, Crime, Sentencing and Courts Act has been circulated to all forces and widely shared with officers involved in policing public order and protest. This guidance reiterates the need for a balanced approach with a reminder of the recent HMICFRS conclusion that

“the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protesters when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.”

In April, the college drafted the National Police Chiefs’ Council’s Protest Operational Advice Document, which reiterated the need for a rapid response to disruptive disorder. The document aims: first, to support consistency of decision-making and engagement with stakeholders; secondly, to signpost guidance, legislation, key legal decisions, policies and practice which may assist in the policing of protest, thereby promoting public safety, preventing or reducing crime, disorder and/or terrorism to support overall public safety; and, thirdly, to assist decision-makers in achieving outcomes which support the exercise by peaceful protestors of their rights under Articles 8, 9, 10 and 11, while striking the appropriate balance between those rights and the rights of others affected by protest. This is being reviewed by the college, which aims to publish the revised version in February 2023.

On training, over the last six months the college has rolled out significant changes to protestor removal training. This used to be a very niche skill with very few people trained to a high level, but this meant the response was slow. The college has since developed new, quicker training for simpler lock-ons, which has meant a substantial improvement in the speed of the police response to these. I could go on, but I think I have made the point. The college is a professional organisation that is proactive in response to protests to ensure that officers are trained to the highest possible standards. It does not need a legislative stick to make them do so. That is why the Government do not support this amendment.

I thank the noble Lord, Lord Coaker, for specifying that Amendment 144 is a probing amendment to query the demand for, and the capacity of, specialist protest officers across police forces. I presume by “specialist protest officers” the noble Lord is referring to both public order trained officers and officers trained in the removal of protesters who lock on. For the benefit of the House, it is worth clarifying that, for the most part, protests are non-violent and are managed effectively by general patrol officers. When there is a risk of violence, officers with additional specialist public order training are deployed.

On specialist public order trained officers, the NPCC has set a national requirement of 297 police support units across England and Wales, alongside 75 in London. A police support unit consists of one inspector, three sergeants and 18 constables as well as three drivers. On level 3, which is basic public order training, the NPCC has set a requirement for 234 basic deployment units.

On the question from the noble Lord, Lord Coaker, on specialist officers, the NPCC has identified a national requirement for 108 officers trained in debonding protestors, 189 officers trained to remove protestors and another 189 who are trained to remove protestors from complex environments such as height. The noble Lord also asked about non-specialist officers. They are deployed to respond to peaceful protests and all have level 3 public order training.

The noble Lord, Lord Paddick, asked me about specials. Peaceful protests would seem to me to be well within the abilities of volunteer police officers—indeed, I have seen it in my own service overseas. He also mentioned cuts. I am afraid I am going to disappoint him by saying that we are well on the way to the 20,000 police uplift that was promised. I will also of course say that the nature of protests has changed and, therefore, so has the nature of policing, as reflected in much of this Bill.

[Lord Paddick (LD)]

I am sorry to interrupt the Minister and am grateful to him for giving way. I have seen evidence that special constables are being trained to level 2 and being issued with specialist equipment, so I am not talking about special constables trained to level 3, as the noble Lord suggested.

The noble Lord gave a whole series of numbers. The National Police Chiefs’ Council has decided that there should be specified numbers of level 3 and level 2-trained units of one, three and 18—one inspector, three sergeants and 18 constables—as the requirement nationally. To what extent have police services fulfilled those requirements? The indication that the Minister gave was that that is the target that the National Police Chiefs’ Council has given, but to what extent have police forces been able to fulfil that target?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know the answer. I will write to the noble Lord with the detail. Regarding the specials, as long as they are trained, surely that is the point.

Chief officers are responsible for demonstrating that they can appropriately mobilise to a variety of public order policing operations at a force, regional and national level in accordance with the national mobilisation plan. The College of Policing sets consistent standards across England and Wales to ensure consistency across forces, allowing officers from different forces to operate in tandem when deployed to other force areas.

The required capacity for public order capabilities is informed by the assessment of threats, harm and risk from the National Police Coordination Centre, as agreed by the National Police Chiefs’ Council. Officials and Ministers in the Home Office regularly probe the National Police Coordination Centre on its confidence that forces can respond to disorder. At present, it assesses that forces are able to meet current protest demands. Forces have been able to use public order resources to respond to incidents including the awful disorder in Leicester in August and September, as well as Just Stop Oil’s recent disruptive campaign on the M25.

Amendment 142A seeks to ensure that statutory guidance issued under Clause 30 is subject to the affirmative scrutiny procedure, rather than the negative procedure, as the Bill currently allows. This follows a recommendation from the Delegated Powers and Regulatory Reform Committee, as explained by the noble Lord, Lord Rooker, and the noble Baroness, Lady Meacher. I thank the committee for its consideration of the Bill. I hope, but am afraid I doubt, that noble Lords will forgive me for echoing the arguments made in the Government’s response here. SDPOs do not represent a new concept. Successive Governments, dating back at least to 1998 and the creation of anti-social behaviour orders in the Crime and Disorder Act, have legislated for civil preventive orders of this kind, which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventive order regimes include similar provision to that in Clause 30 for the Secretary of State to issue guidance which was not subject to the draft affirmative scrutiny procedure. Guidance issued for serious violence reduction orders is subject to the negative scrutiny procedure. Having said that, I listened very carefully to the speech by the noble Lord, Lord Rooker, and I will write to him with an attempt to unravel some of the discrepancies that he mentioned.

We therefore see it as entirely appropriate that the guidance is subject to the negative scrutiny procedure and respectfully encourage noble Lords not to press their amendments.

[Lord Coaker (Lab)]

My Lords, the last remark the Minister made, about writing to my noble friend Lord Rooker, was useful. Reflecting in the letter on the comments by the noble and learned Lord, Lord Thomas, might be helpful as well.

I will focus on my own amendment. I thank all noble Lords who contributed on it. The reason for it was the need for co-ordinated and updated guidance. I am grateful to the Minister for saying that the updated guidance will come at the beginning of 2023.

You can see why there is a need for clarification. An article in the Daily Telegraph just yesterday, quoting the chief constable of Greater Manchester, Stephen Watson, said:

“criticism of officers by the public for being too slow to clear the protesters was ‘not an unreasonable judgment’.”

He went on to say:

“The public has seen us reacting too slowly, less assertively than they would have liked.”


That is the second-most senior police officer in the country saying that the police should have acted more quickly with respect to the protesters. He goes on—and I am not a trained police officer, just reflecting on what the chief constable said in a national paper:

“I think fundamentally, if people obstruct the highway they should be moved from the highway very quickly. The so-called five stage process of resolution can be worked through”


quickly. He goes on, and here is the point that the guidance needs to clarify. Is the chief constable of Greater Manchester right, or are the other officers? The article says that his argument is that

“officers spent too much time building a ‘copper-bottomed’ case for prosecuting people for offences such as public nuisance rather than arresting them for the lesser crime of obstruction.”

I do not know whether that is right or wrong, but somewhere along the line there needs to be clarification through the guidance package, which we hope will come at the beginning of 2023. It should say that, to deal with protests quickly and robustly but according to the law, these are the options available in coming to any decision. The chief constable of Greater Manchester is clearly saying that the police could have done better by using the lesser offence of obstruction. Is he right or wrong? The guidance may be able to sort that out for us. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.

I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.

My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.

To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.

The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.

In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.

I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:

“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”


Another committee, the Constitution Committee, said:

“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”


The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.

[Lord Sharpe of Epsom (Con)]

My Lords, there are notices to oppose within this group, so it may help if I start by addressing serious disruption prevention orders as a whole, before turning to amendments to the clause. SDPOs will target protestors who are determined to repeatedly inflict disruption on the public or those who simply wish to go about their daily lives. Our experience at recent protests has shown that many police are encountering the same individuals, who are determined repeatedly to inflict disruption on the public.

It cannot be right that a small group of individuals repeatedly trample on the rights of the public without let or hindrance. Yes, many are arrested, but after paying small fines or serving short or suspended sentences, they are free to reoffend. This measure would, following the consideration and permission of the courts, allow for proportionate and necessary restriction or requirements to be placed on individuals to prevent them causing harm.

Additionally, in some cases, individuals choose to not get their hands dirty. They go around the country speaking to young people who are determined to make the world a better place—not to encourage them to study and seek out a career to better the planet, or even to enter politics to enact change; instead, they encourage them to commit criminal offences, alienate the public from their cause and jeopardise their opportunity for a career that will actually make a difference. Why should these individuals, who contribute to serious disruption, be permitted to behave as they do without consequence?

This is why SDPOs are needed, as drafted. They will provide an alternative, non-custodial route to prevent those who have a track record of trampling on the rights of others from doing so. The threshold for the imposition of these orders is appropriately high and I trust our courts to impose them only where necessary.

The noble Lord, Lord Paddick, asked about the HMICFRS conclusion. The report from the policing inspectorate considered only orders which would always ban an individual from protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption. Depending on the individual circumstances, this may mean that the court will not consider it necessary to stop individuals attending protests.

Amendments 128, 129 and 130 would raise the evidential threshold for SDPOs to the criminal standard. I am sure that many who support these amendments also support the civil courts approving injunctions against protesters. These are made on the civil burden of proof against large numbers of people, including “persons unknown”. SDPOs are made against single known individuals.

A number of noble Lords asked why SDPOs can be granted using a civil standard of proof, including the noble Lords, Lord Paddick and Lord Skidelsky, the noble and learned Lord, Lord Brown, and the right reverend Prelate the Bishop of Chelmsford, among others. The use of the civil standard of proof is not a novel concept for preventive orders. Football banning orders, for example, use the same standard of proof to help prevent violence or disorder at or in connection with any regulated football matches. By using a civil standard of proof, courts will be allowed, following due consideration, to place prohibitions or requirements they consider necessary to prevent an individual causing disruption.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I thank noble Lords who have spoken in this debate. I will make a couple of brief comments in support of the amendments. The noble Lord, Lord Paddick, forcefully made the arguments for Amendment 150, and I will not repeat them. I also support my noble friend Lady Chakrabarti’s amendments —she also made the arguments.

I will add one thing to the amendments of my noble friend Lady Chakrabarti and the right reverend Prelate the Bishop of Manchester—obviously spoken to by the right reverend Prelate the Bishop of Chelmsford. Amendment 147 talks about the “vetting, recruitment and discipline” of specialist officers. It is especially important that these amendments have been tabled. I know that the Government will be as worried, concerned and appalled as the rest of us in the week where we have seen the resignation of Michael Lockwood as the director-general of the Independent Office for Police Conduct due to a criminal inquiry. My noble friend Lady Chakrabarti made a point about vetting. I have no idea what the process or procedure was when Mr Lockwood got the post, but one wonders about the vetting that took place, and this raises the question yet again. We will not have a big debate about all this, but I think that what my noble friend Lady Chakrabarti’s amendments get at is that, if we are to restore public confidence, we have to address some of these issues. Unfortunately, at the moment, we seem to have one thing after another which undermines the valuable work that so many of our officers do.

I will raise one other point about commencement. The noble Lord, Lord Carlile, raised the issue of Section 78 of the Police, Crime, Sentencing and Courts Act 2022. Talking about the commencement of the Bill, he was worried about Section 78’s definition of

“Intentionally or recklessly causing public nuisance”


and how it related to the provisions in Bill. Before the commencement of the Act, as it will be, some clarification of how it relates to Section 78 of the Police, Crime, Sentencing and Courts Act 2022 would be helpful for our police forces as they interpret the law.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, for tabling their amendments; I absolutely understand the sentiment behind them. It is obviously important that the measures passed in the Bill are continually subject to inspection, reporting and scrutiny by the relevant bodies, such as HMICFRS. However, I remind noble Lords that the use of police powers is already carefully scrutinised by public bodies such as HMICFRS and the Independent Office for Police Conduct. The noble Lord, Lord Coaker, will forgive me for not referring to the ongoing case against the departing chief.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

What I hope I said is that our expectation is that the provisions in the Bill will improve the ability of the police to “remove and deter protesters”, thereby alleviating some pressure on the police.

[Baroness Chakrabarti (Lab)]

That is very helpful. I agree with the Minister that police officers—we have a fine one in this Committee—and police forces should not be treated with a broad brush, but, and noble Lords will perhaps forgive me if I say it, nor should peaceful protesters. Hence, the question raised by the noble Lord, Lord Paddick, and hence the bulk of criticism of this entire draft legislation in this Committee. It is an unhappy privilege to be perhaps the last speaker in this Committee; I think I was the first. I am grateful to the Minister for his fortitude and courtesy. He wants to rise again.

[Lord Sharpe of Epsom (Con)]

I just want to clarify that I mean criminal protesters.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister but, of course, if the Government are able to keep expanding the definition of criminality, that does not give much cause for comfort about protecting peaceful dissent. I am none the less grateful to the Minister for his fortitude and courtesy throughout this three-session Committee. I hope that he and his colleagues will understand that what he has heard over these days and hours is very serious cross-party concern about these measures, reflected in vast sections of the country. I have no doubt that, after a good break and, I hope, a happy Christmas of reflection, colleagues will be back and some of these matters will definitely be put to the vote. With that, I beg leave to withdraw the amendment.

National Security Bill

Lord Sharpe of Epsom Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the Bill be now read a second time.

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

My Lords, the first responsibility of any Government is to ensure the safety of their citizens, both at home and abroad. For this Government, it is not just a responsibility but an absolute priority. The introduction of the Bill is a result of the manifesto commitment to ensure that our law enforcement and intelligence agencies have the powers they need to combat the evolving nature of state threats. That is why we are adopting a robust and front-footed posture. The Bill will confront and tackle state-threat activity that may seek to undermine the democratic principles of the United Kingdom and the security of its people.

I know noble Lords will all join me in paying tribute to those in our law enforcement and intelligence agencies, who go above and beyond to keep us all safe every day. They are the very best of us and they have my enduring gratitude, respect and admiration. For all that they do, we must hold up our end of the bargain and ensure that they have the necessary tools and powers to do their vital work, which is precisely what we will do through the measures in the Bill.

It is worth looking back for a moment to understand the context in which we are discussing these matters. Russia’s recent illegal invasion of Ukraine has shown the essential need to bolster our national security and ensure that we have the ability to counter state threats. The House will also recall the events in Salisbury in 2018, which are a clear reminder that we need laws that seek to deter serious harm from being inflicted on our soil. As that outrageous episode underlined, the dangers we face are real. We must continue to develop our robust and effective apparatus and act now to further harden our resilience. This is why the National Security Bill introduces enhanced powers for our intelligence and law enforcement agencies to do even more to counter state threats and strengthen the security of the United Kingdom.

States are becoming increasingly assertive and sophisticated in how they advance their objectives and undermine the safety and interests of the UK. It is therefore essential that we are able to deter, detect and disrupt state actors that seek to harm the UK by covertly targeting our national interests, sensitive information, trade secrets and democratic way of life. The National Security Bill will protect these interests and uphold our democratic principles, consolidating the safety of our citizens through essential new measures designed to address an ever-evolving threat. We are determined to advance the safety, security and prosperity of the UK, and the Bill is designed to achieve precisely that.

I will now speak to the key measures set out in the Bill. The Bill will modernise the law against espionage, replacing the 1911 to 1939 Official Secrets Acts. New offences of foreign interference have been carefully designed to tackle the threat from any foreign power that chooses to act with malign intent. It is important to stress that these offences are actor-agnostic, and any state or individual seeking to harm the UK will be met with the full force of these newly established powers and tools, regardless of their origin.

These offences, and the others introduced in Part 1, will enable the disruption of illegitimate influence by foreign states intent on advancing their own interests or seeking to damage the UK. It will be an offence for foreign powers improperly to interfere with our democracy and civil society through covert influence, disinformation and attacks against our electoral process.

The Bill also has police powers designed to address the specific threat of foreign power activity. There are specific powers of arrest and detention which reflect the threats posed by such actors. There are also additional police powers to support investigations into foreign power threat activity, focusing on obtaining information on financial activity. These powers will ensure that the police have the tools they need to fully investigate state threat activity and bring those acting for foreign powers against UK interests to justice.

Furthermore, the amendment to the Serious Crime Act 2007 will provide essential protection to those who discharge authorised national security functions on behalf of His Majesty’s Government. The amendment will enable more effective co-operation with our international partners. It is about addressing operational challenges and removing the personal risk that trusted and dedicated individuals face for carrying out their proper, official duties on behalf of our intelligence community and Armed Forces. I welcome the comments of Sir Alex Younger, the former head of our Secret Intelligence Service, who correctly highlighted that it is morally wrong that the risk of liability should sit with individual officers acting on behalf of our agencies. Any risk should rightly sit with the Government and this amendment supports that aim.

Preventing and disrupting state threats is one of the Government’s prime concerns. In a very small number of cases, it will still not be possible to bring a prosecution forward. We must therefore ensure that a backstop is in place to prevent state actors conducting harmful activities in the UK. We will introduce new state threat prevention and investigation measures, enabling restrictions to be imposed, when necessary, where there is a reasonable belief of involvement in foreign power threat activity.

It is important to clarify that this will be a tool of last resort, to be used only where it is believed that there is involvement in foreign power threat activity, there is a necessity to impose measures and a criminal prosecution is not available. These measures will also remain proportionate to the specific threat posed by an individual and be subject to rigorous checks and balances, including by the courts, to guarantee their appropriate use.

The Bill will also introduce measures to prevent the exploitation of the UK’s civil legal aid system by convicted terrorists. It will protect the UK’s civil damages system by ensuring that terrorists’ own misconduct is taken into account in an award from public funds. Courts will also be provided with the ability to order that civil damages awarded to a person are frozen or forfeited where those funds might be used to support terrorism. These provisions will allow the Government to take steps to ensure that a claimant’s damages cannot be used in this way.

With regard to legal aid, access to publicly funded services is a benefit of being part of a democratic society. This Government remain wholly committed to providing legal aid funding for those unable to resolve their issues alone, but there must be a line. Individuals who commit acts of terrorism are rejecting the values of state and society and it is right that the benefit of legal aid—a benefit of our democratic society —is removed from them. These measures will help instil a rigorous process that provides greater transparency around how public funds are distributed.

The Bill will also introduce a foreign influence registration scheme, requiring certain foreign activities and influence arrangements to be registered. The scheme’s aims are twofold: to strengthen the resilience of the UK political system against covert foreign influence and to provide greater assurance around the activities of certain foreign powers or entities.

I must make clear that we will continue to welcome open and transparent engagement from foreign Governments and entities. The scheme itself will play a critical role in encouraging such transparency and, crucially, will deter foreign powers that wish to pursue their aims covertly. The implementation of this scheme delivers a key recommendation of the Intelligence and Security Committee’s 2020 report on Russia and has been assisted by consultation with our friends in the United States and Australia, which have implemented similar schemes.

The National Security Bill is a dynamic piece of legislation that reforms our approach to hostile state actors and the threats that they pose. The introduction of our foreign influence registration scheme will ensure safety in our systems and transparency in our political processes. I look forward to engaging with all noble Lords on the Bill. I welcome discussion both today and as this essential piece of legislation progresses through this House. As I hope I have demonstrated in this speech, the Government are steadfast in their determination to protect our people, our values and our democracy. With that critical objective in mind, I beg to move.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to all who have contributed to what has been a very constructive and instructive debate. I welcome the broad support that has been shared across the House. I particularly thank the noble Lord, Lord Evans of Weardale, for his supportive comments on the foreign influence registration scheme. I also thank the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Manningham-Buller, and others in this House who engaged us in such a constructive and supportive manner, in both this debate and the engagement sessions we have run over recent weeks.

I turn to some of the specific points that have been raised. I ought to crave your Lordships’ indulgence because this will not be a short speech; it will be a sincere effort to address all the key points in full, and not a cynical attempt to bore all noble Lords to tears. Starting with interaction between this Bill and the Online Safety Bill, which was referenced by the noble Lords, Lord Stevenson of Balmacara and Lord Ponsonby, the Government are obviously aware that we have overtaken that Bill in its passage, and we will ensure that the links between the Bills have the desired effect.

A central element of a number of offences in the Bill, alongside the foreign power condition, is the test of the safety and interests of the UK. This test is one way that legitimate activity is excluded from the scope of relevant offences. In considering any prosecution in relation to the offences to which the provisions regarding prejudice to the safety and interests of the UK apply, the court will consider the nature of the risk to the safety or interests of the UK. Case law already makes clear that

“the safety or interests of the United Kingdom”

should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. This is notably different from protecting the particular interests of those in office.

The noble Lord, Lord Wallace of Saltaire, questioned the scope of the foreign power condition in the Bill. The foreign power condition provides a single and consistent means by which a link to a foreign power can be made for the purposes of the offences of obtaining or disclosing protected information, trade secrets offences, sabotage, foreign interference and the state threats aggravating factor. The foreign power condition can be met in two scenarios: first, where a person is acting for or on behalf of a foreign power and, secondly, where a person intends that their conduct will benefit a foreign power. I reassure the House that this will not capture people who do not know, and could not possibly know, that they were acting for a foreign power. Rather, Clause 29 requires that a person knows, or ought reasonably to know, that their conduct is being carried out for or on behalf of a foreign power, or they must intend to benefit a foreign power. Of course, where our authorities consider a person to be carrying out harmful activity with a state link, this can be drawn to a person’s attention, providing a strong deterrent effect against a person continuing with that activity.

The Bill follows the Law Commission’s recommendation to replace the existing link of an “enemy”, as set out in the Official Secrets Act 1911, with a definition of a “foreign power”. We agree that incidental or tangential links to financial or other assistance from a foreign power will not suffice to meet the foreign power condition in relation to harmful conduct. Those who receive funding from foreign powers to carry out legitimate activities would not meet the foreign power condition if they were entirely separate to that funding to undertake activity covered by one of the offences in the Bill. The other place passed an amendment on Report to put it beyond doubt that any financial or other assistance must be clearly linked to the illegitimate conduct in question.

The noble Lord raised the matter of the Home Secretary. All I will say is that she has provided a detailed account of the steps she took in her letter to the HASC. I will not make further comment as this matter has been dealt with in detail at other times.

Oversight was discussed at length in the other place, as it has been today, and in the helpful engagement sessions I have held with colleagues. Although we already have oversight mechanisms in place for Part 2 of the Bill, the Government have committed to consider whether any additional oversight is required for state threats legislation. We have been considering whether it is possible to extend oversight beyond Part 2 in a way which does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing mechanisms governing both the UK intelligence agencies and the police. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty. We are currently exploring the different options for appointing an individual to oversee Part 2, along with our work to consider whether there is merit in expanding oversight beyond it. It is crucial that whoever is appointed has relevant experience and skills and can provide an objective assessment of the offences and powers to ensure appropriate and transparent scrutiny.

Many have raised concerns regarding the Serious Crime Act amendment in Clause 28 of the Bill. I know there will be general understanding of why I cannot go into detail on operational issues in this place; however, let me reassure the House that the Government have been working with the UK intelligence community—or UKIC—which has now provided an operational briefing to the Intelligence and Security Committee outlining examples of why this measure is needed. The committee has acknowledged the need for the SCA to be amended and appreciates our reasoning for seeking changes, though it is not yet in full agreement on the way the problem is being addressed. I thank the committee for its engagement on this matter and welcome a collaborative dialogue going forward. I want to be clear that the Government have heard noble Lords’ concerns and will look carefully at what can be done to tackle these issues. I am grateful to all noble Lords who spoke on this clause and thank them for their thoughts. I look forward to further discussions to find the right way forward.

Let me turn to why the SCA amendment is necessary. Collaboration with international partners is a vital element of the national security work carried out by the Armed Forces and UKIC. To support this crucial work, a number of safeguards and processes are in place to ensure that this collaboration is necessary, proportionate and prevents potential wrongdoing. For example, the Government remain committed to the Fulford principles and overseas security and justice assistance guidance, which exist to ensure that our officers do not knowingly support unlawful activity. Further, UKIC’s regulatory compliance is monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.

The UK has one of the most rigorous intelligence oversight regimes in world. There are several internal safeguards and processes in place which manage the way that UKIC and the Armed Forces work with and exchange information with international partners to prevent potential wrongdoing. Operational decisions are carefully recorded and made with the benefit of regular advice from specialist legal advisers to ensure compliance with domestic and international law. Intelligence officers receive mandatory training on the legal frameworks and policies which govern UKIC and Armed Forces activity. These policies include the Fulford principles, the compliance with which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. UKIC’s regulatory compliance is also monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.

The Serious Crime Act offences mean that individuals who have complied with all those safeguards—working under authorisation and in the interests of UK national security—may fear personal criminal liability. It is not right or fair to expect this risk to sit with trusted individuals who are acting in good faith and on behalf of our intelligence services or Armed Forces for authorised purposes. Instead, responsibility should sit with those organisations at an institutional level, where it is subject to executive, judicial and parliamentary oversight.

I want to be absolutely clear: Clause 28 is not a broad, general immunity from criminal offences and not about allowing the Government to carry out torture or commit murder. Rather, the Government are making an amendment to provide a targeted protection which better facilitates co-operation with our key overseas partners. At present, despite being satisfied that all other domestic and international law obligations are met, essential intelligence sharing with partners has been delayed or prevented in order to protect individual officers from potential liability for SCA offences. This is a having a chilling effect across UKIC and the Armed Forces, reducing the confidence of officers who make vital national security decisions every day. As a country, that means that we are less safe, because reciprocal access to intelligence facilitated by joint working is crucial to responding to the threats we face, such as terrorism.

This amendment is not about letting UKIC and the Armed Forces do whatever they want. It is about ensuring that we are protecting those working for us from prosecution and giving them the confidence that the Government have their backs. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisation’s activities, and I commend the important work of the ISC and IPCO in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. That is right and fair.

I have full confidence, however, in those to whom we are providing protection, including our intelligence agencies. They are expert, professional and highly trained individuals, whose judgment and skill we respect and have faith in. Not taking the opportunity to provide those individuals with assurances that they are protected would be an abdication of our responsibility to support them in keeping our country safe.

The noble Lord, Lord West of Spithead, asked why the SCA is necessary, given Section 7 of the Intelligence Services Act, which authorises the “reasonable” defence. The noble Lord, Lord Carlile of Berriew, also raised a point on those matters, so I shall try to deal with them now. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable for the purposes of the existing defence to the Serious Crime Act offences, the application of the reasonable defence to UKIC and Armed Forces activity is untested. The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty to those tasked carrying out important national security work. Section 7 ISA authorisations are not available in all the circumstances in which the SCA risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.

The foreign influence registration scheme, or FIRS, is being created to tackle covert influence in the UK. It will strengthen the integrity of our systems and enhance the transparency of our political processes, delivering a key recommendation of the Intelligence and Security Committee’s 2020 Russia report. As I am sure noble Lords will agree, it can be only right that the UK public and our democratic institutions are appropriately protected from political interference from abroad and better informed as to the scale and extent of foreign influence in our affairs. Russia’s recent attempts to undermine European stability has brought the need for action into sharp focus. That is why the scheme will require the registration of all political influence activities where they are to be carried out in the UK at the direction of a foreign power or entity. It is important to note that the scheme will not impose restrictions on the legitimate activities of people or business. Indeed, it is there to encourage openness and transparency. To be clear: we continue to welcome open and transparent engagement with foreign Governments and entities, and we will ensure that the administrative burden of the registration requirement is kept to a minimum.

The noble Lord, Lord Wallace of Saltaire, raised two key concerns. First, he suggested that the political tier of FIRS would have a disproportionate impact on academia. That would be the case only when those bodies undertook political influence or activity. Further, no countries are now specified on the enhanced tier, so there is no activity to be registered as it now stands. If the Government list a country, we will consider what activity should be registrable, ensuring that any such registration would be proportionate.

[Lord Wallace of Saltaire (LD)]

My Lords, before Committee, could we be told how this new proposal will interact with the National Security and Investment Act, which already acts on universities? Universities are concerned that there will be a double effect, increasing the problems they face and the amount of time they will have to spend on them.

[Lord Sharpe of Epsom (Con)]

I shall get back to the noble Lord on that point.

To conclude on that issue, these decisions will be subject to parliamentary approval.

Secondly, I assure noble Lords that all the policy in the Bill is subject to collective agreement and has the support of the full Government. It is also important to note that the Government undertook a consultation on the Bill, including FIRS, in the summer of 2021, and ran targeted engagement with industry this summer.

With regard to the specified person measure included in the foreign influence registration scheme, it is important to clarify its necessity. It will offer us three key benefits. First, it will provide the Government with a greater understanding of the scale and extent of activity being carried out on behalf of specified foreign powers and entities. Secondly, it will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through entities. By requiring the registration of relevant arrangements and activities, the risk of engaging in state-threats activity against the UK is increased. Finally, the specified person measures provide a potential option for earlier disruption when there is evidence of a covert arrangement between an individual and a specified foreign power or entity but not disclosable evidence of a more serious state- threats offence. Crucially, this provides an opportunity to prevent harmful activities at the earliest possible stage.

On Clause 3, the noble Lord, Lord Marks of Henley-on-Thames, gave the example of an individual working with Mossad in the UK to recover artefacts looted by the Nazis. In his example, we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i).

A number of noble Lords raised the Official Secrets Act 1989, including the noble Lord, Lord West, and the noble Baroness, Lady Ludford. As the House knows, the Government are not planning to reform this Act. It is worth noting that the Law Commission, in evidence to the Bill Committee, clearly explained that it did not envisage that any one statute would implement all its recommendations at once, even if the Government were minded to accept them all. It also did not recommend that a public interest defence be created in relation to the espionage offences in the Bill. We continue to consider the Law Commission’s recommendations on the Official Secrets Act 1989.

On the specific issue of a public interest defence, or PID, to overcome a PID, the Government would need not only to show that the disclosure was damaging but that any harm from a disclosure outweighs the public interest in the disclosure. This would likely mean that in a prosecution, even one where a person clearly had malicious intent, the damage of the original disclosure could be severely compounded. This could lead to even egregious breaches of the Act not being prosecuted due to the sensitive nature of the evidence that the Government would have to reveal to defeat the PID. The Government recognise that there may be situations where an individual has a legitimate need to raise a concern—for example, in situations where there may have been wrongdoing and where they think there is a public interest in disclosing that information—but disclosing information protected by the Official Secrets Act 1989 and then relying on a PID is not the safest or most appropriate way for an individual to raise these concerns and have them rectified. Nor would this address the underlying wrongdoing.

The offences in the National Security Bill target harmful activity by states, not leaks or whistleblowing activity. There are safeguards that prevent the Bill capturing whistleblowers and negate the need or utility of PID. For example, to commit an offence of disclosing protected information, the conduct must be done for or on behalf of, or with the intention to benefit, a foreign power and with a purpose prejudicial to the safety or interests of the UK. A genuine whistleblower would not meet this bar. Including a PID in any of the offences in Part 1 strongly implies that acts of espionage could be in the public interest. Clearly, acts of espionage against the UK can never be in the public interest.

There are also already several existing internal and external routes in government through which individuals, including government subcontractors or contractors, can raise a concern about information relevant to the Official Secrets Act 1989 safely. The number of routes has increased since 1989. The Government consider that these routes provide safe and effective options for disclosure, although the appropriate route would of course depend on the disclosure in question. These routes include, among others, government departments’ internal policies and processes; a staff counsellor for the national security community; organisational ethics counsellors; the chair of the Intelligence and Security Committee; the Investigatory Powers Commissioner’s Office; the Attorney-General’s Office; the Director of Public Prosecutions; and the Commissioner of the Metropolitan Police in instances where an individual suspect’s criminal activity is taking place or has taken place. To sum up, the introduction of a PID would carry significant risks to our national security and do nothing to create a safe or effective route to raise a concern, compared to the many legitimate routes the Government are actively maintaining and improving.

Turning to the report published by the Joint Committee on Human Rights, raised by the noble Baroness, Lady Ludford, the Government are clear that the offences and powers introduced by the Bill are proportionate and necessary. Through the use of appropriate safeguards and conditions, and reflecting on the need to protect national security and public safety, the offences have been crafted to catch only legitimate activity, ensuring that they remain proportionate. The Government disagree with the overall position of the committee and maintain that the measures in the Bill are appropriately drawn. Our ECHR memorandum, updated on the introduction of the Bill into this House, outlines the government assessment of how our measures comply with human rights law. I look forward to engaging with the committee as the Bill progresses through this House and the Government will respond to the JCHR report in due course. I am sure the noble Baroness would not expect me to speculate on the Bill of Rights Bill and its future.

The noble Baroness, Lady Jones of Moulsecoomb, asked when the Government will publish the Russia report. I am pleased to be able to tell her that the Government did in July 2020. In fact, I can tell the noble Baroness that our response was published on the very same day; the Bill is a direct response to the recommendations in that report.

In conclusion, I will repeat my earlier thanks to all who have participated today. I look forward to further examination and challenge as we move to Committee, but for now I beg to move.

Bill read a second time.

National Security Bill

Lord Sharpe of Epsom Excerpts

Tuesday 6th December 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order:

Clauses 1 to 14, Schedule 1, Clauses 15 to 21, Schedule 2, Clause 22, Schedule 3, Clause 23, Schedule 4, Clause 24, Schedule 5, Clause 25, Schedule 6, Clauses 26 to 37, Schedule 7, Clauses 38 to 41, Schedule 8, Clauses 42 to 49

Schedule 9, Clauses 50 to 52, Schedule 10, Clauses 53 to 56, Schedule 11, Clause 57, Schedule 12, Clauses 58 to 63, Schedule 13, Clauses 64 to 71, Schedule 14, Clause 72 to 86, Schedule 15, Clauses 87 to 90, Schedule 16, Clauses 91 to 98, Title.

Motion agreed.

Violence against Women and Domestic Violence

Lord Sharpe of Epsom Excerpts

Thursday 1st December 2022 Lords Chamber

[Baroness Gale]

To ask His Majesty’s Government what plans they have to remove the reservation on Article 59 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, now that they have ratified the convention.

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

My Lords, the Government are committed to tackling violence against women and girls. We were therefore delighted to ratify the Istanbul convention in July and it came into force in the UK on 1 November. We are carefully considering the findings of the Support for Migrant Victims scheme pilot evaluation to ensure that migrant victims are supported effectively. We remain committed to making a timely decision on whether it is appropriate to maintain our reservation on Article 59 of the convention.

[Baroness Gale (Lab)]

I have to say that I expected that Answer from the Minister but I thank him anyway. Is he aware that Southall Black Sisters, which was running the pilot scheme, has said that the scheme has a different focus on Article 59 and therefore should not be used to justify the reservation? Will he agree to meet representatives from SBS so that they can explain why they do not believe there is a need to wait for the pilot scheme report before the Government remove the reservation on Article 59?

As we are half way through the 16 days of action by White Ribbon, which campaigns against violence against women and girls, does the Minister also agree that this would be a wonderful opportunity for the Government to show their support for migrant women who suffer from domestic abuse while the perpetrators hold over them the threat that, if they leave, they will lose their status in this country? Will the Minister commit to that today?

[Lord Sharpe of Epsom (Con)]

My Lords, as I said, the Government are considering the report received from the organisations, including Southall Black Sisters, that operated the pilot scheme, and will respond in due course. I think that is as far as I can go at the moment.

[Baroness Burt of Solihull (LD)]

In a statement to the Guardian in May, when asked why the Government had excluded Article 59 from ratification, a government spokesperson said that

“we are evaluating our approach to supporting migrant victims of domestic abuse and will make a final decision … once that is concluded.”

Have the Government also evaluated how many victims are enduring abuse at home, fearful of seeking help because the threat of deportation is being held over them by their abuser? Is their suffering being factored into the Government’s evaluation?

[Lord Sharpe of Epsom (Con)]

I should make it clear that the Government regard the victims first and foremost as victims, so of course those considerations are being taken. We are far from alone in making reservations; 25 other countries have also done so on ratification or indicated their intention to do so when signing. As I have said, we will be considering that decision in the light of the migrant victims scheme pilot evaluation, which is being looked at.

[Baroness Sugg (Con)]

My Lords, I am pleased to hear that the Government are reconsidering the reservation. Is the Minister able to give any more clarity on a timeline for that reconsideration?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. We have also carefully considered the recommendations in the Domestic Abuse Commissioner’s Safety Before Status report, and the follow-up report is due to be published before the end of this year. Under the terms of the Domestic Abuse Act, we have 56 days to respond to that, so the extension of the MVS pilot covers that 56 days and we will be responding within that timeframe.

[The Lord Bishop of Gloucester]

My Lords, do the Government plan to include the Domestic Abuse Commissioner’s definition of immigration abuse in policy and guidance on domestic abuse?

[Lord Sharpe of Epsom (Con)]

My Lords, the Government have already taken forward a number of the recommendations made in part 1 of the Domestic Abuse Commissioner’s Safety Before Status report. As I say, the follow-up report is due to be published soon. We have partially accepted 11 recommendations. I am happy to say that all those things will be considered in due course.

[Baroness Thornton (Lab)]

My Lords, I think the Minister will now realise that across the House there is concern because—it is important for him to acknowledge this—being safe and protected from inhuman and degrading treatment is a human right. How are the Government compliant with that obligation if the reservation on Article 59 is in place, denying access to domestic abuse support to thousands of women victims merely because of their immigration status?

[Lord Sharpe of Epsom (Con)]

I have obviously heard the tone of the House but, as I have tried to make clear, the Government are carefully considering this and will look into being able, as we hope, to withdraw the reservation in due course. It is fair and right, however, that we evaluate the reports received so far and the ones that we will be receiving shortly.

[Baroness Jenkin of Kennington (Con)]

My Lords, the Government also entered into a reservation in respect of forced abortion and sterilisation. Can my noble friend the Minister explain why?

[Lord Sharpe of Epsom (Con)]

Yes, that is under Article 44. We did not consider that there was a strong case to make an exception for forced abortion or forced sterilisation. Those offences are covered by general offences of physical violence, for example ABH and GBH. We do not apply dual criminality to those offences when they are committed in normal physical violence contexts, as we know of no jurisdiction which does not have general offences of violence equivalent to ours. There is therefore no reason to take a different approach when it comes to forced abortion and forced sterilisation.

[Lord Bird (CB)]

Will the Minister reassure us that the Government are going to do something about those people caught by this lack of justice while they are making up their mind? Will they be able to look back at all those people who will, while they are making up their mind, be destroyed by the gross misuse of them as human beings?

[Lord Sharpe of Epsom (Con)]

My Lords, I referred earlier to the pilot scheme being extended for a year, so I would hope that nobody will fall into the category described by the noble Lord.

[Baroness Bryan of Partick (Lab)]

Can the Minister understand why some women in this position who are concerned about their immigration status are reluctant to involve the police force, not just because of that status but because of their colour and gender?

[Lord Sharpe of Epsom (Con)]

Yes, the Government absolutely understand that. I reiterate the point that they are regarded as victims first and foremost. Essentially, the question is: why is there a firewall between police and immigration enforcement? Having considered the evidence from experts in the sector and police representatives, we did not consider that establishing a complete or time-limited data-sharing firewall between the police and the Home Office would meet the joint aims of encouraging victims of crime with insecure status to report crime while maintaining an effective immigration control.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the Minister said that he was delighted that the Government had ratified this convention. I share his delight, notwithstanding the reservation, but can he tell the House why it took so long?

[Lord Sharpe of Epsom (Con)]

I can tell the House that if we had not introduced the reservation, it would have taken even longer. As to why it took so long, no, I do not know the answer.

[Baroness Chakrabarti (Lab)]

My Lords, I appreciate that the Minister has said that the Government are considering removing the reservation, but can he explain a little about what the problem is? He will know, of course, that Article 59 does not give blanket residence to any class of women. It just says that a competent authority should consider their circumstances and, where necessary, give this vital protection to them.

[Lord Sharpe of Epsom (Con)]

Again, as I think I have explained, the Government are assessing the evidence that is coming back from the migrant victims scheme pilot programme.

[Lord Green of Deddington (CB)]

My Lords, can the Minister elaborate on the immigration aspects of this problem?

[Lord Sharpe of Epsom (Con)]

I am not entirely sure how to answer that question. With regard to the firewall, I have just given a very complete answer. I hope that goes some way to answering the noble Lord’s question.

[Lord Foulkes of Cumnock (Lab Co-op)]

As the Minister was not able to answer my question, could he write to me with an answer?

[Lord Sharpe of Epsom (Con)]

I will endeavour to do so, yes.