National Security Bill

Lord West of Spithead Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, this legislation has been a long time coming. The ISC first recommended reform of the outdated Official Secrets Act almost 20 years ago, in 2004. In the intervening period, as has been said by a number of speakers, the need for reform has become more pressing. The world has changed significantly. Threats to the UK’s national security, particularly from hostile state actors—I must get that right —have become more complex, varied and destabilising, making it more important than ever for our intelligence community to have the tools it needs to defend us.

In 2020, the ISC’s Russia report explicitly and simply stated that

“the Official Secrets Act regime is not fit for purpose”.

We recommended that new legislation be urgently introduced as,

“the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.”

The ISC therefore strongly welcomes the long-awaited introduction of the National Security Bill.

Nevertheless, the committee is disappointed to see that the Government are only partially reforming the Official Secrets Act regime. The 1911 and 1939 Acts are being repealed but, crucially, not the 1989 Act, which deals with the unauthorised disclosure of sensitive information. This is a significant missed opportunity. The Government have accepted the need for change for years. In their 2021 consultation paper on the National Security Bill, they said it would,

“include, at a minimum … Reform of the Official Secrets Act 1989”.

Despite that recognition, this Bill still does not reform the 1989 Act.

If this Bill is to provide a new framework to tackle state threats, as it purports to do, it is vital that that framework is comprehensive. It must provide better protection for sensitive information, such that offenders can be prosecuted effectively. This is too serious an issue to have been put in the too-difficult pile, as it appears to have been. I hope the Minister agrees that sensitive information must be properly protected and will therefore commit to reforming the Official Secrets Act 1989 as part of this Bill or, at the very least, to introducing additional legislation in this parliamentary Session.

Before I address the detail of the Bill, I want to emphasise the words of my ISC colleagues in the other place. They made it clear that they felt the Government’s handling of this Bill had been disgraceful and had significantly undermined Parliament’s ability to scrutinise the proposed legislation. There has been a catalogue of problems, including multiple Security Ministers responsible for taking the Bill through the other place; the Government’s introduction of the most significant aspects of the Bill by amendment at a very late stage, reducing the time available for scrutiny; and the limited time made available for debate, preventing any serious consideration of the proposed changes to the Bill in the other place. This Bill is about our national security; it is too important to be handled in such a haphazard manner. I am sure that I speak on behalf of all noble Lords when I say that we expect the need for effective parliamentary scrutiny to be taken seriously by the Government.

I turn to the detail of the Bill. Many of the changes proposed were recommended by the ISC and therefore we broadly welcome them. Clause 1 incorporates updated language to reflect the modern espionage threat. It replaces the outdated existing legislation with provisions that are tailored to the radical technological changes that have taken place since the Official Secrets Act early in the last century. Clause 12 is also sensible, creating a new sabotage offence. This is an important change, particularly given the risks of foreign involvement in critical national infrastructure, which the ISC first publicised in its report of the same name in 2013. Clauses 3 and 15, which create new offences for assisting or obtaining material benefits from a foreign intelligence service, are valuable additions. Together with Clause 16 —the preparatory conduct offence—these will provide law enforcement with additional tools to disrupt foreign agent networks at a much earlier stage, making the UK a more difficult environment for foreign intelligence services to operate in.

Turning to the long-awaited foreign influence registration scheme, one of the cornerstones of the new regime, the ISC firmly supports such a scheme to increase the transparency of foreign influence activity in the UK. It was a key recommendation of the ISC’s Russia report in 2020, which assessed that such a scheme would be helpful in countering overt Russian influence. It is perhaps a case of better late than never. The United States first introduced such a scheme in the 1930s, over 80 years ago. By contrast, despite the Government describing it as a key component of the new Bill, it was introduced only by amendment late in Committee in the other place, driven, I understand, by the last-minute events in Ukraine. This delay has meant that there has not been sufficient time to scrutinise this very complex regime. We now have time to consider it and, as an aside, bearing in mind thoughts of abolishing this House, thank goodness for our Chamber’s ability to actually do that.

I believe that noble Lords will find the same as the ISC, that, as it stands, the scheme is too complex, compared to similar schemes in the United States, for example, while at the same time not going far enough. It is separated into two registration tiers: the first captures all arrangements and activities that are undertaken on behalf of any foreign power for the purpose of influencing a political event or decision. This is a welcome provision, providing an additional tool to disrupt clandestine foreign activity that is intended to influence our democratic institutions. The second, enhanced tier of registration will capture all other activity beyond political influencing. It will capture, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, such activity has to be undertaken on behalf of a country set out in secondary legislation. It therefore does not apply to every country automatically.

It is difficult to understand why, unlike with comparable schemes in the US, there are two tiers and why the registration of harmful activity outside political influencing applies only where the foreign power is set out in secondary legislation. It is possible that harmful operations will be undertaken by countries that are not named in the regulations and so will not require registration. Requiring all countries to register such activity would act as a far stronger deterrent, helping the authorities prosecute such behaviour and making the UK a more challenging environment in which to operate.

Listing countries by regulation will also be a challenge to use in practice. It will take time for the Government to agree which countries to add, particularly given the potential diplomatic ramifications, when flexibility and pace may be required. These flaws will inevitably lead to the enhanced tier, which could have been a valuable tool, not being used. As the Security Minister recognised in Committee in the other place, the use of this enhanced registration requirement will be “limited”. This is a wasted opportunity, undermining a potentially effective tool. It must be more effective to have one tier that applies to all countries and a broad range of covert activity. That may require there to be a greater number of exemption categories, but it would surely be a simpler and more practical system of registration.

Little thought also appears to have been given to the transparency of the scheme. While the Security Minister has said that the registrations under the primary tier will be published, he confirmed in Committee in the other place that those relating to the enhanced tier, reflecting the most damaging activity, will not be published. There is no reason for that disparity. While there may be a national security reasons justifying why certain information cannot be made publicly available, that will not always be the case. Transparency is at the heart of the scheme and, in order to avoid it being fundamentally undermined, details relating to the secondary tier must be published.

For the scheme to work effectively, the Home Office team supporting it must be properly resourced. That unit will be responsible for scrutinising submitted documents, identifying risks and updating the register, yet in Committee in the other place the Security Minister said:

“It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny.”—[Official Report, Commons, National Security Bill Committee, 18/10/22; col. 401.]


The Government clearly believe they can save money by not resourcing a team at the Home Office and relying on the public, a position completely undermined by the fact that details relating to the enhanced tier are not going to be published so the public will not know what to report. We believe that a failure sufficiently to resource this crucial unit or an overreliance on public scrutiny will fundamentally undermine the regime’s effectiveness.

I turn to the important Clause 28, about which Members of the other place had serious concerns and which the ISC cannot recommend to this House. Clause 28 disapplies the offence of encouraging or assisting offences overseas under the Serious Crime Act 2007 when the activity is deemed necessary for the proper exercise of any function of an intelligence service or Armed Forces. Put simply, it provides a rare carve-out from liability for the intelligence agencies and armed services when working abroad. Colleagues in the other place, particularly those from the ISC, question the justification for such a broad exception from criminal liability. There is already an offence of acting reasonably under Section 50 of the Serious Crime Act. Further, the agencies can already seek immunity from liability for any act committed abroad under Section 7 of the Intelligence Services Act 1994. The lack of a proportionality requirement and the absence of an oversight mechanism were also criticised.

The Bill Committee in the other place recognised that there may be highly classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government committed to provide the ISC with that highly classified material. The ISC has now considered that highly classified material, which was taken in evidence, and I can tell the House that the committee is of the view that Clause 28 potentially identifies a legitimate problem, which is that, despite the existing legislative protection, there may still be a risk of criminal liability for junior members of the intelligence community and the military, even when acting within the remit of their duties, which could have an impact on operations. Indeed, to be fair, there have been historical instances where military and agency junior ranks in the field have effectively been hung out to dry when doing their best to fulfil what they see as their duty. The ISC therefore sympathises with the aim of the clause.

Nevertheless, the ISC is also firmly of the opinion that the clause goes considerably beyond what is needed and is not appropriate as drafted. While the existing mechanisms to avoid liability may not be comprehensive, that does not justify such a broad automatic exemption with such limited accountability. The clause must be either significantly amended or replaced entirely. The ISC has been given an assurance that the Government are looking to find a way to meet its concerns. They must work quickly to identify a more appropriate approach, as the current clause is unacceptably broad, and we cannot support it as it stands.

If there were time, I would draw noble Lords’ attention to a number of other important points that were raised by the ISC and other colleagues in the other place; no doubt we will consider these as the Bill progresses. I particularly note the need to consider simplifying the “trade secrets” definition in Clause 2 to make the offence more effective in practice; the need to expand the “foreign interference” offence to cover recklessness as well as intent; the concern that the state prevention and investigation measures be used only as a last resort; and exhortations to extend the oversight provisions in Clause 54 across the rest of the Bill.

The ISC firmly supports the aims behind the Bill, but it requires careful analysis and considerable improvement if it is to strengthen the ability of law enforcement and the intelligence community sufficiently to manage the significant threat posed by hostile state actors, and if the UK’s new national security regime is to be comprehensive and effective. We echo what was said about the bravery and efficiency of the agencies, and what they achieve. The Bill will be very useful for them in making our nation safer, but it needs a certain amount of amendment.