National Security Bill

Maria Eagle Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Priti Patel]

The right hon. Gentleman will appreciate that, whether that is the view of the Law Commission or others, reform of the Official Secrets Act is complicated and not straightforward. I can tell colleagues that no one would be happier than I to present a reform agenda in that space, but it is not straightforward—[Interruption.] I appreciate colleagues’ gesturing on the Back Benches, but it is important that on this complex reform we continue to engage with a wide range of interests and give all due consideration to a number of concerns, because there are many, many concerns being raised.

[Maria Eagle (Garston and Halewood) (Lab)]

I, too, am a little mystified at why the Home Secretary is not seeking to reform all the Official Secrets Acts—the entire regime—with this once-in-a-generation piece of legislation. If she is not doing it in this Bill, can she tell the House when it will be done? Is there a timeline for reforming the Official Secrets Act 1989?

[Priti Patel]

Without pre-empting the work that is taking place in Government right now, I want to give that assurance. That is also based on the Law Commission’s recently published review. However, as I have already said, a wide range of work is required in terms of engaging stakeholders and looking at all aspects of the law itself. These issues take time, but the Government are working on them right now, and I can assure the House that as soon as we can, when we find the right moment, we will come back to this.

--- Later in debate ---

[Priti Patel]

My hon. Friend makes an important point. These changes and measures are not straightforward. I can say to colleagues from the Floor of the House that, having had many discussions directly with our counterparts in Australia over the past 18 months, some aspects of the scheme work, but some do not. It is in our interests to make sure that we get this right. Colleagues need to come together on this. We need to work collectively—not just on the technicalities, but on the legal points. It is the legal application that will matter in terms of making a material difference.

[Maria Eagle]

I think I heard the right hon. Lady give us a commitment that the provisions will be introduced in time for Committee stage in the Commons, which is very welcome. We can then try to make sure that we get this right. I hope that she will confirm that I did hear her correctly and that the provisions will be introduced at the earliest stage in the Commons.

[Priti Patel]

That is exactly what I said.

While these considerations are important, we should also reflect on the fact that the Bill is informed by extensive public consultation. It is informed not just by the work of our counterparts in the Five Eyes and other countries, and by legislation that has been introduced by others, but by our evolving work with our law enforcement and intelligence agencies. Those agencies are at the heart of the application of this work. They will be the ones who will be leading the enforcement, putting the laws into practice and dealing with the practicalities of this work. The Bill also builds on the difficult and necessary work undertaken by my right hon. Friend the Member for Maidenhead (Mrs May), who corralled the unprecedented international response to the barbaric Salisbury attacks. This Bill is a culmination of much of the work that she set in train, and we have also been in discussion with her about this Bill as well.

We should not forget that, in response to the Salisbury outrage, the UK expelled 23 undeclared Russian intelligence officers. Twenty-eight other countries and NATO supported us, resulting in one of the largest collective expulsions ever—of more than 150 Russian intelligence officers. That led to the degrading of Russian intelligence capability for years to come, and we have more cause than ever to be grateful for that today.

The National Security Bill completely overhauls and updates our espionage laws, which date back to the second world war—in some cases, to the first world war. It also creates a whole suite of measures to enable our law enforcement and intelligence agencies to deter, detect and disrupt the full range of modern-day state threats. The Bill includes a range of new and modernised offences, alongside updated investigative powers and capabilities. Those on the frontline of our defence will be able to do even more to counter state threats. Additionally, the Bill will prevent the exploitation of the UK’s civil legal aid and civil damage systems by convicted terrorists by stopping public funds being given to those who could use them to support terror.

I now turn to specific measures in the National Security Bill. The foreign power condition provides a clear approach to determining whether offences or aggravated offences are being carried out for a foreign power, or on their behalf, or with the intention of benefiting a foreign power. Many of the offences introduced in the Bill apply only when the foreign power condition is met and it prepares us to face tomorrow’s threats as well as those that we face today.

We are comprehensively updating the laws that deter and disrupt espionage, as well as enhancing the ability of our law enforcement and intelligence services to investigate and prosecute those who spy on behalf of foreign states. We have already had cause to strengthen visa screening of Chinese academics and researchers in sensitive areas of research, and to step up engagement with our higher education and research sectors to alert them to the threats and risks of Chinese espionage. Three reformed offences in the Bill will combat the modern threat from state-linked espionage and related harmful conduct.

One of the UK’s greatest strengths is that we have absolutely world-leading research and innovation, but as we have seen too often it is the target and subject of hostile activity by foreign states. A new offence of obtaining or disclosing trade secrets will help us to respond to that threat more effectively. It will specifically target the illicit acquisition or disclosure of sensitive trade, commercial or economic information by foreign states, as the value of these is directly linked to secrecy. The offence will apply only where the foreign power condition is met and will carry a maximum penalty of 14 years in prison.

The Bill will also make it a criminal offence to aid the UK-related activities of a foreign intelligence service. This, too, will carry a maximum penalty of 14 years’ imprisonment. That means that, for the first time, it will be an offence to be an undeclared foreign spy working in the UK. We know that foreign intelligence services can have malign intentions: for example, as the US and UK set out in April 2021, Russia’s foreign intelligence service, the SVR, has been behind a series of cyber-intrusions, including the extremely serious December 2020 hack of SolarWinds, the American software company.

The Bill will reform the offence of obtaining or disclosing protected information. Where a person knows, or ought reasonably to know, that their conduct

“is prejudicial to the safety or interests of the United Kingdom, and…the foreign power condition is met”,

they could now face a life sentence.

--- Later in debate ---

[Maria Eagle (Garston and Halewood) (Lab)]

I am pleased to be speaking in this debate as one of the newer members of the Intelligence and Security Committee of Parliament. It is good to hear from my colleagues on the Committee, and I will try not to repeat too much of what they have said, because the Committee has of course taken a view on some of the issues covered by the Bill.

Let me begin by saying to the Home Secretary that it is unequivocally a good thing that the Government have finally brought forward a Bill to update and reform the Official Secrets Act regime, as has been made clear across the House. As many have said, the legislation relating to the Official Secrets Act regime goes back many—very many—years and is no longer fit for purpose. It is not just the Government who do not think it is fit for purpose. The Committee has said that it is not fit for purpose and the Law Commission has said that it is not fit for purpose. I have not heard anybody suggest that it is fit for purpose, so I think there is consensus across the Chamber that it needs to be replaced.

The idea of replacing the Official Secrets Act regime is to ensure that the intelligence community has the legislative powers and the tools it needs to combat the varied, complex and constantly evolving threat to the UK’s national security posed by hostile state actors. It is therefore good that the Bill as currently drafted, with its aims to modernise the offence of espionage and create a suite of more modern tools and powers for police, security and intelligence agencies to defend the UK against hostile state actors, is now before us. Although the Home Secretary has set out her intentions in legislation, she has not made it clear that she intends a comprehensive reform of the Official Secrets Act regime in total. She is reforming espionage offences, but she is not doing much at the moment about the Official Secrets Act 1989, which relates to the unauthorised disclosure of sensitive information. That is an important part of the Official Secrets Act regime, without reform of which she cannot claim that she has modernised the existing suite of powers. I agree with her—I doubt there would be much disagreement—that it is quite a difficult thing to do, but she and her predecessors have been at it for some time, helped by other parts of Parliament and by the Law Commission which have looked at the matter. Perhaps now is the time—with this Bill before us, which is meant to be a comprehensive piece of legislation—actually to make it comprehensive and come up with proper reforms.

The Law Commission has suggested a regime, and the right hon. Member for Chipping Barnet (Theresa Villiers) has set out that she certainly believes, as the Committee does more generally, that this reform ought to be part of this legislation. From what I gathered from the Home Secretary’s replies to interventions earlier—and I am glad if she is listening to what is being said—she is not proposing to bring forward reform of the Official Secrets Act 1989 in this legislation, nor has she set out a timetable within which she intends to bring it forward in another piece of legislation, which is a disappointment.

This Parliament will end in 2024, if it does not end sooner—of course, provisions about when Parliaments end have now changed, and it could end sooner than that—so the Home Secretary might be saying to the House that she does not have any plans to make the reform comprehensive in this Parliament. She has certainly not committed that she will. I think that that is a shame—it is an omission. However, in respect of the other missing element—the foreign influence registration scheme—I very much welcome the fact that the Home Secretary has been very precise and said that it will be introduced in Committee. I hope that that is at the beginning of the Committee stage, because the points that have been made by Members across the House about the importance of scrutinising such a provision are important. She will only get into trouble in the other place if she does not enable proper scrutiny in the Commons. We all want to get the foreign influence registration scheme right, and scrutiny can only help with that.

I hope that the Home Secretary introduces that swiftly, giving plenty time for proper scrutiny. The proposals that have been made for a Committee of the whole House might be a way of doing it, if she can persuade the business managers. I hear that she is very persuasive, so perhaps she can persuade them that that should be done. I do not think that she would find anyone who said that that was a bad idea. The Government have previously made a commitment that reform of the OSA 1989 would represent a key part of the Bill, so it is a bit of a mystery, difficult as it is, that it is missing. One might even say that it is a glaring omission. The Home Secretary could put it right by introducing that sooner.

Comments have been made about clause 23 and the amending of schedule 4 to the Serious Crime Act 2007, to disapply the offence of encouraging or assisting offences overseas when the activity in question is deemed necessary for the proper exercise of any function of the intelligence services or armed forces. The explanatory notes say—and I think that I heard the Home Secretary say something similar—that the provision will

“provide better protection to those discharging national security functions on behalf of Her Majesty’s Government, to enable more effective joint working and to improve operational agility”.

I think that that is what the Home Secretary said, but this appears to be a wholesale carve-out of the intelligence services and the armed forces from any liability for assisting or encouraging crime overseas in any activities undertaken abroad. It is in effect an extensive granting of impunity against liability for criminal wrongdoing abroad for those discharging national security functions. It is extraordinarily broad in scope, particularly given the defence in legislation for those discharging national security functions abroad, which protects from liability in certain circumstances.

Section 50 of the Serious Crime Act 2007 protects those who act “reasonably”, and the agencies and armed forces can use those provisions to protect their staff in appropriate circumstances where their actions are reasonable. There is a further option in some cases to protect staff from liability by obtaining a ministerial authorisation under section 7 of the Intelligence Services Act 1994.

The question—and it has not really been answered—is why has this wholesale carve-out been included? Why is it needed? What is inadequate about the current defences that has led the Government to do this? If an action does not meet a reasonableness test, I do not think it could possibly be described as necessary for the proper exercise of any function of an intelligence service or of the armed forces. Clause 23 at the moment appears to confer impunity without the need to consider whether an action is reasonable. When the Committee considered this matter, it did not think that it was justified, and the case has not been made to justify the inclusion of a blanket carve-out from liability—nor does that carve-out explain what has gone wrong with the existing reasonableness defence and the ministerial authorisation system, and why that is thought to be inadequate. We look forward to a much clearer explanation in Committee of why the Government think the provision is necessary, because in a worst-case scenario it could lead to less accountability for the agencies. At best, it seems unnecessary, given the existing safeguards.

On the legal aid provisions in part 3, I heard what was said by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who is not in his place at the moment. He cautioned that the Government need to be careful about the terms in which they set out such provisions. My remarks are in view of my membership of that Committee and certainly not a reflection of my membership of the ISC, because such matters are not in its remit.

Civil legal aid has always been made available based on two main criteria: the type of case, including its likelihood of success; and the financial means of the applicant. It has never been dependent on the nature of any previous conviction of the applicant in a blanket ban, and certainly not whether they had been convicted of a particular type of offence in the past. I understand why policymakers and the Government might be concerned about those who have committed terrorist offences getting civil legal aid to sue, but I hope the Government will consider whether introducing this novel way of determining eligibility for civil legal aid is the right way forward.

I notice that provisions in clause 61 and schedule 10 will enable the court to make a freezing order on all or part of any damages that such a person recovers, ensuring that they are paid into the court, and enable an extension of the period for which awarded damages can be frozen. There is also provision in schedule 10 for a forfeiture of any such damages if it looks like they may be used to further some terrorist cause. I have no problem with that, but the novel restriction proposed on eligibility is difficult because it changes the whole way in which administration of civil legal aid is carried forward for a particular class of person. We must be careful about that. One can always think of other types of offenders who perhaps do not “deserve” to get civil legal aid. My concern is that introducing such a way of looking at eligibility may have a much broader implication that is not entirely good. That is despite there being hard cases, and I understand why policymakers are concerned.

When we get to Committee, I hope that those of use fortunate enough to consider the Bill further will be able to go into all its aspects in a lot more detail. I finish as I began by welcoming the Bill’s introduction; it just needs to be more comprehensive.