National Security Bill (Third sitting)

Maria Eagle Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Stephen McPartland]

As I said earlier, we have three huge protections. One is that activity must be for, or on behalf of, a foreign power. I understand the point the hon. Gentleman is making, but there are another two layers on top of that protection. The first is that the Attorney General’s consent must be obtained. Secondly, the Crown Prosecution Service must be satisfied that prosecution would be in the public interest. Those are three very strong layers of protection that would help protect an NGO if it were to do something inadvertently.

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

I welcome the Minister to his place. Having such protections in place is all very well, but the real issue is the chilling effect this could have in the kinds of circumstances that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has set out. It is not right, is it, for us to criminalise activity that we do not really want to criminalise, but then say, “Well, the Attorney General will sort it out later in each individual case.”? That is not really a very good way of legislating.

[Stephen McPartland]

We are not talking about legislating in that way. If the hon. Lady will forgive me, we are saying that there are three layers of protection. The first layer is that people would be deemed to be obtaining or disclosing protected information for, or on behalf of, a foreign power. The next layers would involve the Attorney General and the Crown Prosecution Service. The hon. Lady, as a lawyer, will be very well aware that the CPS always determines whether it feels it is in the public interest to prosecute. People will not be caught up by accident, and I think we are getting into theoretics by going further and further down that line.

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[Stephen McPartland]

Current events demonstrate that we never protect the Government from embarrassment!

Before I get into the detail of the offence itself, it is important to flag that, along with other offences in the Bill, it will apply only in circumstances where there is a clear link between the activity and a foreign power. That is provided for by the foreign power condition, which we will discuss in more detail later. It responds to recommendations in the Law Commission’s 2020 “Protection of Official Data” report about moving from outdated concepts such as “enemy”.

Clause 1 enhances our ability to tackle the threat of espionage by introducing a modern offence to capture those unlawfully obtaining, copying, recording, retaining, disclosing or providing access to protected information. Protected information is any information, document or other article that is or could reasonably be expected to be subject to a form of restriction of access in order to protect the safety or interests of the United Kingdom—for example, if the information is stored within a secure Government building or has a form of restricted classification. Protected information can cover a wide range of Government material, including information such as raw data, documents such as committee reports and other articles such as memory sticks.

Protected information includes, but is not limited to, classified material. That is important, given that serious harm can be caused by obtaining or disclosing seemingly non-sensitive information that, if used in a certain way by sophisticated state actors, could be capable of damaging the United Kingdom’s national security. However, I want to be clear that the definition will not cover truly benign items such as the lunch menu of the Home Office canteen.

Like the existing espionage provisions, and as recommended by the Law Commission, clause 1 will require that a

“person’s conduct is for a purpose…prejudicial to the safety or interests of the United Kingdom”.

The term

“safety or interests of the United Kingdom”

has been interpreted in case law as meaning the objects of state policy determined by the Crown on the advice of Ministers, which includes national security. That enables the United Kingdom to respond to threats targeted against its wide range of interests.

Amendment 46 would require that a person’s conduct be instead for a purpose that they know, or ought reasonably to know, is damaging to the safety or critical interests of the UK. That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts, and is likely to result in fewer prosecutions being pursued, offering further opportunities to those looking to harm our country through acts of espionage. The use of “prejudicial” mitigates some of that risk.

[Maria Eagle]

I am grateful to the Minister for setting out the difference between those two words, but can he give us an example? The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East gave a theoretical example to illustrate why he tabled the amendments. Can the Minister give us an example of something that is prejudicial and not damaging?

[Stephen McPartland]

I will come on to that in a bit. I will provide an example shortly.

[Maria Eagle]

Thank you.

[Stephen McPartland]

You are very welcome. I would not want to get it wrong.

Amendments 47 and 48 would introduce and define the term “critical interests”. In the amendments, “critical interests” is defined to include security, intelligence, defence, international relations and law and order. Although I recognise that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East tabled the amendments to attempt to specify exactly what should fall under UK interests in order to add clarity, I must stress that it limits the scope and utility of the clause 1 offence and risks creating loopholes that could be exploited by those looking to harm the UK. There is also the risk that the offence would become quickly outdated as the UK’s interests naturally and properly evolve. Notably, the list does not include economic interests or interests relating to public health, to name just two areas that would be overlooked by such a definition. Those are areas that are targeted by hostile actors and should rightly be protected.

The safety or interests of the UK test is used not only in clause 1, but in several other offences throughout part 1 of the Bill, such as sabotage or entering a prohibited place with a purpose prejudicial to the UK. There is a risk that creating a notably different test under the clause 1 offence would confuse the legal interpretation of the tests under those other offences and may have a significant impact on their operational utility.

Finally, I reiterate that the test of a person conducting activity

“prejudicial to the safety or interests”

of the UK already exists and is understood in the courts. Just last week at an oral evidence session, the law commissioner invested considerable time and effort in reviewing this area of law, outlining their support of the Government’s decision to retain that term. They commented that the

“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act…and it avoids what might risk being an unduly narrow focus on national security.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 52, Q97.]

Moving away from the amendments, it should be noted that instead of using “enemy”, as in the espionage provisions, the offence in clause 1 includes a foreign power condition. That moves the offence away from labelling countries as enemies, which is less relevant in the 21st century.

The hon. Member for Garston and Halewood asked about the difference between prejudicial and damaging. The damage requirement would require the court to demonstrate harm and explain why it is damaging, whereas prejudice is broader and could include reducing future opportunities. That will also mitigate some of the risks associated, as I have said. It provides a wider test so that we can intervene at an earlier stage of a plot or something else that would affect our national security.

I turn to the extent of the provisions under the 1911 Act. An activity that takes place wholly outside the UK would be an offence only if it is committed overseas by a UK national or officer, such as a Crown servant. Technological developments in a more global world mean that it is now more likely that information that warrants protection to safeguard the safety or interests of the UK may be vulnerable to activity that takes place outside the UK by a wider range of actors—for example, a locally engaged security guard working in a UK embassy stealing papers, or the theft of information held there digitally via cyber means.

To keep pace with the modern threat, the extraterritorial jurisdiction for the offence has been expanded so that the offence can be committed anywhere in the world and by anyone, regardless of their nationality. The extraterritorial jurisdiction is a critical reform within the offence as a better defence for the United Kingdom against a modern espionage threat, whose global nature is not reflected in the current provisions in the espionage offence of the Official Secrets Act 1911.

Another key difference from the existing offence is the increase in the maximum penalty available to life imprisonment. The emergence of modern vectors such as cyber means that espionage has the potential to cause a greater level of harm than was possible in 1911 when the United Kingdom’s espionage offences and penalties were first drafted. In the most serious cases, an act of obtaining or disclosing protected information can result in the loss of life or can gravely undermine the United Kingdom’s ability to defend itself from a range of threats. This demonstrates the United Kingdom’s resolve to make it more difficult and detrimental for hostile actors to undermine our country’s interests and safety by committing acts of espionage.

Although we will come to this in more detail later in Committee, I want to flag a key safeguard that applies to prosecutions to this and other serious offences in part 1. Given that state threat activity and the United Kingdom’s response can have a significant impact on the safety and interests of our country and wider international relations, the Attorney General’s consent, as I said earlier, must be obtained in the case of England and Wales before a prosecution is taken forward. In Northern Ireland, the consent of the Advocate General must be sought.

I stress the importance and need for reform of the espionage laws in the Official Secrets Acts 1911, 1920 and 1939. Recent and ongoing events make it clear that the threat from state threat activity, particularly acts of espionage, is of continuing concern and we must have robust protections in place. The introduction of the offence of obtaining or disclosing protected information as a core part of the Bill provides measures to tackle the harmful espionage activity that the United Kingdom faces. That is why clause 1 is so vital. I encourage my fellow Committee members to support it and I ask that the hon. Member withdraw his amendment to it.

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[Stephen McPartland]

My understanding is that the action would have to be done on behalf of or for the purposes of a foreign power. If it was done unknowingly, it would be for the lawyers and the Crown Prosecution Service to decide how to proceed.

[Maria Eagle]

In the example that my right hon. Friend the Member for North Durham gave of a person obtaining information and trade secrets and selling them to a competitor business, if that business had a complex ownership structure that led back to, say, China, would that be enough for the person to fall foul of the legislation?

[Stephen McPartland]

I appreciate the question and understand the spirit in which it was asked. However, one thing that we must be careful of is laying out exactly what someone must do to fall foul of the legislation. If we did, in that example, the Chinese would create that structure and be in a position to use it ensure that anybody acting on their behalf would not fall under that power. We must provide the intelligence agencies with the tools that they need to interdict and decide whether such people can be pursued and taken to court. As we have seen, it is difficult to get anybody on espionage. However, as we have said throughout proceedings, we do need the foreign power condition, or to reasonably know, and reasonableness is a huge test within English law, so a person would have to reasonably know that what they are doing would benefit a foreign power.

The offence under the clause is first and foremost a national security offence. We have created a definition of “trade secret”, found in subsection (2), which is intended for use in the state threats context. The introduction of the definition in the offence will help to address the increasingly diverse set of tactics employed by state actors to undermine the UK’s national and economic security and target a wide range of information.

There is no specific criminal offence in UK law that directly criminalises the threat to trade secrets by or for the benefit of foreign states. We have trade secrets regulations that transpose European law, but they serve a different purpose. We have therefore modified the definition of “trade secret” to ensure that it is suitable for our specific purposes. For example, as well as requiring that protections are in place that would limit the utility and potentially impose obligations on businesses, the definition in the Trade Secrets (Enforcement, etc.) Regulations 2018 does not account for information with a potential value. We are seeking to capture early-stage ideas such as research as well as established ideas that are more likely to be subject to protective measures.

Subsections (1)(b) and (3) set out in the instances in which a person’s conduct is unauthorised and what that means. The clause uses the term “unauthorised” because it focuses on the consent of the person with the power to give that consent. We want to make it absolutely clear that legitimate conduct is not captured by this offence. For the purposes of this offence, a person’s conduct is unauthorised if they are not entitled to determine whether they are able to carry out the conduct in question—for example, if they disclose a trade secret to a foreign power and they do not have the permission of the person who does have the power to make that decision. An example of where someone is not captured by the offence could be a team of researchers who are working with a foreign power, but although the information they control amounts to a trade secret, their research partnership authorises them to share that information with the foreign power.

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[Holly Lynch]

The SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and my right hon. Friend the Member for North Durham have outlined their thoughts on amendment 50. I will speak to clauses 4 and 5 more broadly.

Clause 4 establishes a new offence of entering a prohibited place for a purpose prejudicial to the UK. We welcome the measure, and the protection it will offer to sites and places that are vital to our national security. It has been a long time coming, and we have been falling back on somewhat antiquated legislation in the absence of such provisions. Giving evidence to the Intelligence and Security Committee in January 2019, the director general of MI5 said,

“The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc.”

In his evidence on behalf of the Law Commission last week, Dr Nicholas Hoggard said

“One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

Clause 4(2) sets out that,

“a reference to inspecting a prohibited place includes—

(a) taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place;

(b) inspecting photographs, videos or other recordings of the prohibited place.”

We heard some more innovative examples, as my right hon. Friend the Member for North Durham likes to think outside the box, and as those acting on behalf of hostile states will continue to evolve and adapt to the legislation that we progress through this place.

Clause 4(3) explicitly states that the offence applies if the person inspects a prohibited place

“by electronic or remote means”,

and clause 4(4) states that the offence applies

“whether the person’s conduct takes place in the United Kingdom or elsewhere.”

The use of drones has been an asset in many ways, but inevitably a headache in others. I have raised concerns previously on behalf of constituents that it is at the extremes of distaste and disrespect for drone footage of serious or even fatal accidents to be taken by members of the public and shared on social media, or published by news outlets. It is with urgency that we need to update the laws that ensure national security is not compromised in the absence of up-to-date legislation, but for the reasons I have highlighted I hope this might also be the start of a conversation about drones, beyond their national security implications.

Clause 5 establishes that

“A person commits an offence if—

(a) the person—

(i) accesses, enters, inspects or passes over or under a prohibited place, or

(ii) causes an unmanned vehicle or device to access, enter, inspect 15 or pass over or under a prohibited place,

(b) that conduct is unauthorised, and

(c) the person knows, or ought reasonably to know, that their conduct is unauthorised.”

The Opposition welcome this provision, and see it as a necessary step to protect sites that are vital to our national security. I would like to probe the Minister on the stipulation that a person who commits an offence “ought reasonably to know” that their conduct is unauthorised. There is a concern that an individual may unknowingly stumble on a prohibited place, and then be prosecuted in the same way as someone actively seeking to undermine UK national security. Further detail on the sentencing guidelines might allow us to work through that uncertainty, but we have to work with what we have in primary legislation. The chances of that occurring are made more likely by the fact that this stand-alone offence does not need the foreign power condition to be met.

Let me provide some rare light relief in today’s proceedings. In 2016, civilians began to wander on to the grounds of several restricted air force and military bases in Canada while playing Pokémon GO, which is an augmented reality game where characters spawn randomly in the proximity of a user’s location—it was all the rage at the time. Documents released on request to the Canadian Broadcasting Corporation revealed the military’s confusion about what was happening at the time. One email from a major read,

“Please advise the Commissionaires, that apparently Fort Frontenac is both a PokéGym and a PokéStop”.

He went on to say,

“I will be completely honest in that I have no idea what that is.”

Just three days after the app’s release, two men drove a van on to an air force base near Toronto just before midnight. A corporal confronted the occupants and found them playing with their smartphones. In another incident, one woman was found at the Borden base playing the game, while her three children climbed over tanks. In their attempts to get on top of what was going on, the documents revealed that one colonel wrote,

“There’s a game out there taking off like gangbusters, and it requires people to move to digitally cached locations to get points”.

I do not know what “gangbusters” means. Another security expert recommended they hire a 12-year-old to help them out with the problem.

As part of the military response, at least three officers at different bases were assigned the task of playing Pokémon GO on site, and logging the appearance of every gym, PokéStop, and wild monster. In what I thought was a particularly enterprising spirit, in my constituency of Halifax’s namesake, they instead recommended that the PokéStop be relocated nearer to the museum, in the hope that it would increase footfall in a helpful rather than unhelpful way. I intended to share those examples by way of demonstrating that innocent players of Pokémon GO should be protected from the harshest of sentences, but on reflection, having read out the details, I am not so sure.

Back to the serious—I could not find specific examples here in the UK, but I can only imagine that there were some. We cannot afford to create carve-outs for Pokémon GO players that could be exploited by those acting on behalf of hostile states. The example outlines the need for appropriate consideration of such mitigations in the sentencing guidelines for such offences.

I note that the Law Commission proposed that in any reform of the Official Secrets Acts, a safeguard similar to that contained in section 131 of the Serious Organised Crime and Police Act 2005 should be introduced, requiring the Secretary of State to take such steps as he or she considers appropriate to inform the public of the effect of any designation order, including, in particular, by displaying notices on or near the site to which the order relates. That would ensure that an individual is given fair warning that he or she is approaching a location that is given enhanced protection by the criminal law. If I am not mistaken, that point was made by the right hon. Member for Dundee East on Second Reading. I hope that the Government will recognise the merit of doing so.

[Maria Eagle]

I have a short point of clarification for the Minister, if he would be so kind. It is about what is covered by the offence.

I am looking at clause 5(1)(a)(i), which states:

“A person commits an offence if…the person…accesses, enters, inspects or passes over or under a prohibited place”.

Clause 5(3) clarifies further:

“In subsection (1)(a) a reference to inspecting a prohibited place includes taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place.”

Does that include someone who is off the premises with binoculars or some device to enable them to look closely at the prohibited place, without being under or over it? Does that include the old-fashioned spy looking through binoculars and taking notes, rather than taking photographs, or is that not covered by the clause? It does not seem that it is, but I might have missed something. I will be grateful for clarification.

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[Stephen McPartland]

I agree.

[Maria Eagle]

Will the Minister give way on this point?

[Stephen McPartland]

A final time.

[Maria Eagle]

I regret having to ask more than once, but I am just not quite clear from the Minister’s answers. Perhaps he could write to the Committee if it is not totally clear; that would not be a problem. In subsection (1)(a)(i), does inspecting include looking from a distance—not over or under—say through binoculars that magnify, if someone is doing that with a malign intent, so they are caught by subsection (1)(b), which are the other requirements of the offence?

Would just looking through binoculars from a distance—not taking videos or photographs—and just doing notes or a sketch still be covered, or are we creating a lacuna? That is the only question I seek an answer to. I am afraid the Minister has not been totally clear on how looking through binoculars is covered. We are not inspecting the sketch—we are inspecting the site through the binoculars. Is that not right? In which case, is it still okay for this person to do a sketch? It is not clear.

[Stephen McPartland]

I am grateful for the intervention and shall try to clarify. It is clear that the provision is not exhaustive, but the reality is someone has to inspect the site, whether that is through binoculars or making a sketch, and the purpose of that activity—that inspection—is to be prejudicial to the interests of the United Kingdom.

[Maria Eagle]

That is clear.

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[Stephen McPartland]

I am grateful to the right hon. Member. As I said, that is certainly something that we will look at and come back to.

[Maria Eagle]

rose—

National Security Bill (Fourth sitting)

Maria Eagle Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Holly Lynch]

Clause 13 is quite substantial, and creates a new and general offence of foreign interference. Under the clause, someone who behaves recklessly but for whom an intention to aid a foreign intelligence service cannot be proven would not be committing an offence, unlike under clause 12.

The hon. Member for Hastings and Rye has a particular interest in that element of the offences. She will remember that in last Thursday’s evidence session, she asked Professor Sir David Omand, the former director of GCHQ, about the question of recklessness in clause 13. He said that he

“looked to clause 24, ‘The foreign power condition’, and there is quite a lot of scope in it for a successful prosecution to demonstrate that the individual who has, as you say, acted recklessly, could reasonably have been expected to know that their act would benefit a foreign power, for example, so I was not so concerned about that particular question.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 17, Q34.]

However, in response to a very similar question, Carl Miller, the research director of the Centre for the Analysis of Social Media at Demos, made the interesting point that introducing recklessness in such a way may make businesses or service providers take their responsibilities on those types of risks more seriously when agreeing to take on commissioned work. I put that example to the Minister in our discussions on clause 3.

We will propose later in proceedings, through new clause 2, an independent reviewer to look annually at all the powers in the Bill—not just part 2—and not only check that we have the right balance when using the powers, and consider any unintended consequences, but make recommendations. I think clause 13 is viewed as fair by both sides of the Committee, but I hope that our debate about recklessness has shown that new clause 2 would make a great deal of sense.

Government amendment 9 is a welcome step—if somewhat presumptuous—that would make foreign interference a priority offence in the “Online Safety Act”, as on the amendment paper. It is slightly odd to amend the Online Safety Bill through this Bill, given that that Online Safety Bill is only just out of Committee—it is on Report in the Chamber as we speak—but the change is a very welcome development none the less. Reset.Tech’s Poppy Wood spoke in evidence of her hopes for that provision, and was pleased to see its addition.

Later in proceedings, we will come back to what more could be done in the disinformation space when we discuss new clause 3, which addresses the reporting of disinformation originating from foreign powers. Alongside clauses 13 and 14, we have discussed separately with the Minister that we are still awaiting further news about the planned foreign influence registration scheme, which has been called for since the aforementioned 2020 Russia report. It was a big focus on Second Reading, when the Minister’s predecessor was under a great deal of pressure from the Chair of the Intelligence and Security Committee and others for not having produced the detail in time for the whole House to be able to discuss and debate it. The practical outcome of the implications of clause 13 is that we would like to see the detail as soon as possible, and the Minister knows our views on that.

Before closing, I want to touch on the issue of foreign interference. On Second Reading, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) spoke extensively about the need to tackle shell companies. The new offences outlined in these clauses will mean little if they cannot be detected or if measures are rarely enforced. Again, we urge the Government to remove the loophole that allows shell companies to be used to make donations to political parties, and to hide foreign donations and donations linked to hostile states. I expect the Minister will say that further work on interference of that type is under consideration as part of a second economic crime Bill, but I am looking to him for further assurances on that type of foreign interference.

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

I rise to support some of the points made by my hon. Friend the Member for Halifax. Given the Minister’s recent arrival, I am sure that this is not his responsibility and would not have happened had he been in charge, but it is particularly bad for a Government amendment to seek to amend a Bill that is still going through its Commons stages and has not reached the other place. In fact, it is still on the Floor of the House. It is a particularly poor practice that I hope the Minister, in his new role, will deprecate among his officials and seek to prevent from happening in the future.

It is really bad for the Committee to seek to amend a Bill that is still on the Floor of the House and has not been passed yet, when it is quite clear—unless the Minister has a good reason why it is being done this way, which I would be interested to hear—that it is not sensible for us to amend a Bill that has not yet even passed its Commons stages. It seems to be a recipe for incoherence and confusion. I hope that the Minister will agree and seek to prevent us from seeing such amendments in the future, because it is just rank poor practice.

The clause introduces an important defence for the country and fills a gap that has needed to be filled for many years, so I very much support it. However, it is noticeable that, unlike clause 12, which we have just discussed and approved, the offence set out in clause 13 does not include recklessness in the same way as some of the other offences set out in the Bill. There must be a reason for that, but it is not immediately apparent what that is, and it would help the Committee a great deal if we could hear the rationale for recklessness being left out.

Obviously, the offence also does not include where an individual is unwittingly used to conduct the activity that the person who is engaging in the interference is seeking to conduct. I can understand that a bit more, because if someone is a dupe—perhaps without any intention or recklessness at all—one can understand why the offence might not extend to that person. However, given that some of the offences being introduced by the Bill do include recklessness, it would still constitute an offence if there was recklessness rather than intent. Why has recklessness not been made a part of the offence? I am sure there is an explanation, and I think it would help the Committee a lot to hear what it is. If there is no good explanation, perhaps the Minister might go back and produce an amendment that includes “recklessness” in clause 13.

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[Maria Eagle]

I have a couple of points to ask the Minister about. The clause is a generally necessary and helpful provision. It provides for the offence of preparatory conduct, and makes it an offence to do things that are not an offence at the moment. The point, however, is that it helps law enforcement to intervene at an earlier stage, before the preparatory conduct has turned into the capacity to commit whatever it is that is being prepared for. It must be difficult for those seeking to disrupt such activities to have to sit around and wait for an offence to be committed before putting a stop to the preparatory conduct.

The purpose of the clause is clear, and it will be a useful addition. However, will the Minister explain why the clause covers preparatory conduct for various offences, but not all the offences in the Bill? Why does it not cover preparatory conduct with the intention of committing a new foreign interference offence, for example, because it does not? What is the reasoning behind that offence being left out of the clause?

It would be helpful for us to hear from the Minister what the thinking is in that regard. If it is good to have an offence of preparatory conduct to prevent at an early stage offences that might otherwise be committed that would be quite serious, why not for the foreign interference offence?

[Stephen McPartland]

The clause provides a disruptive tool to tackle preparatory activities carried out by those who seek to cause us harm. Malign actions by states have the potential to cause significant damage to the UK and its interests, and it is therefore vital that the law can intervene at an early stage when preparatory activities are under way. That is already provided for under the Official Secrets Act 1920, and the Law Commission has recognised the importance of maintaining the provision.

The offence covers preparatory conduct in two scenarios. The first is preparation to commit acts that would constitute one of the following offences: obtaining or disclosing protected information, obtaining or disclosing trade secrets, entering a prohibited place for a purpose prejudicial to the UK, and sabotage. The second is preparation to commit state threats activity that involves serious violence, that endangers life or that creates a serious risk to the health and safety of the public. The offence of preparatory conduct covers those who are preparing to carry out harmful acts themselves, and those who make preparations for another person to commit the acts.

Importantly, the preparatory conduct offence is committed only where there is an intention to commit a relevant act and that can be proved beyond a reasonable doubt—I hope that provides some reassurance. The element of intention provides an important safeguard that will prevent the offence from capturing legitimate acts, or acts undertaken by individuals who did not engage intentionally in state threats activity. In addition, consent will be required by the Attorney General, or the Advocate General in Northern Ireland, before a prosecution can be brought under the offence.

When preparatory acts are caught at an early stage, it may be unclear exactly what the perpetrator intended as the ultimate outcome—for example, an act of sabotage or obtaining trade secrets. The offence may therefore be committed if there is a general intention that the preparatory conduct will result in harmful state threats activity of a general nature. That is in line with the approach taken by Parliament when it provided the offence of the preparation of terrorist acts under section 5 of the Terrorism Act 2006. A requirement to demonstrate that the preparatory act was undertaken with the intention that specific harmful state threats activity result would, in many cases, constrain the offence in a way that would be wholly undesirable and potentially allow state actors to evade the law.

Those caught preparing to harm us could face a maximum sentence of up to life imprisonment. The Committee will be aware that the ultimate decision on the length of the penalty faced will be decided by the courts, taking into account the severity of the preparatory activity and the harms that were intended to result from it, which could include long-lasting damage to the UK or the loss of life. I totally understand what the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said about life imprisonment being a heavy penalty, and the courts would not give such a sentence for some of the examples that he described. But the courts could impose life imprisonment if someone was preparing to commit murder and the courts would want to treat some activities in the same manner, because if someone had another person assassinated, the court would want the full ability to impose a life sentence in those circumstances.

We know all too well that state actors operate using sophisticated methods, and that they can cause unimaginable harm. I therefore stress the importance of clause 15 as a key tool in our fight against states who seek to harm us. Where we can disrupt state actors at a preparatory stage, we must do so, before they have the opportunity to manifest their intentions to cause harm to our nation. As we discussed earlier, the ability to deal with the offence already exists in the Official Secrets Act 1920, and the proposed offence in the Bill modernises its terms. With regard to why the offence is to be expanded to apply to some rather than others, we believe that we have carefully assessed the link between the two, and we do not think it is necessary or appropriate to extend the offences to apply to foreign interference or assisting a foreign intelligence service at present. That is something that we will continue to look at.

Effectively, we need to continue to get the powers on the statute book to help the intelligence services and provide them with the toolkit that they need to help keep us safe.

On amendment 52, which seeks to raise the threshold—

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[Maria Eagle]

I was trying to work out the Minister’s answer to me. The foreign interference offence in clause 13, which we have debated, covers a wide range of harmful activity, including manipulating legal or political processes, interfering with fundamental rights. Why is the offence of preparatory conduct not applying to those activities? What is the reasoning, because it would be an important disruption tool for authorities to try to prevent foreign interference, would it not?

[Stephen McPartland]

I understand what the hon. Lady is saying—

National Security Bill (First sitting)

Maria Eagle Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[The Chair]

Just before we get the answer, I will just flag up that this may be outside of the scope of this Bill, but we will allow the discussion to proceed, because we have not made a precise ruling on it as the co-Chairs of this Committee. So please proceed, but there the potential for it not to be within the scope.

Sir Alex Younger: My answer is a less eloquent version of that, which is that I have talked about the Government about this. Essentially, they say that they think it is too complicated to work this issue through in the timescale that this Bill is operating in. I am not a lawyer; I apologise. I do not have a detailed answer to your question.

Professor Sir David Omand: I believe that the powers in the Bill are not only necessary, but urgent. In addition to everything that Alex was saying, we are living through a digital revolution. The digital harms are there. I would hate to see the powers in this Bill held up, and possibly even miss their legislative slot, while quite difficult work is done on the 1989 Act.

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

Q I have never heard anybody apologise for not being a lawyer before.

Sir Alex Younger: It is sincere.

[Maria Eagle]

It is novel for me—I speak as a lawyer.

I would like to come back to clause 23 and the changes proposed to the Serious Crime Act 2007. I could tell you are very strongly in favour of the changes, but I wonder whether this kind of complete carve-out from liability for the agencies is something you have come across before anywhere else. Is this totally novel, or have you seen it operate somewhere else, and you think it would work well in these instances? There are already defences in that legislation to protect the people you were expressing concern about. What is so wrong with the defences that are already there?

Sir Alex Younger: There are other examples. Australia is the clearest, but it goes much broader than this, actually. In our case, you are right, and it is really important to recognise that a large part of what is already there works. The SCA is, by the way, an Act that I absolutely support—I hate to see fat cats here helping people launder money overseas; it is really irritating. We need this stuff, but I am fairly sure that this aspect, the potential criminalisation of intelligence exchange, was unintentional. The reality is that the way the SCA is drawn, with its extraterritorial nature and its very broad conditions, captures things that would not be adequately addressed through the safeguards that were in place before.

Of course, as you allude to, there are defences in place, but to go back to the conversation we have just had, I do not think I as a counter-terrorist operator, which I was, would be particularly happy—even though I have faith in the justice system and the wisdom of juries—to know that what I did could be tested in a court of law with all the uncertainty that entails, when I am obeying a lawfully authorised instruction with all of the oversight that exists. I want to be really clear: when a UK intelligence community individual acts not in good faith or outside those instructions, they should absolutely be subject to all the considerations, including of secondary liability, that exist, but I think any ambiguity in the circumstances I just described is wrong and will have a chilling effect on our intelligence exchange.

[Maria Eagle]

Q Does not the ability to obtain a ministerial authorisation under the Intelligence Services Act 1994 deal with those concerns?

Sir Alex Younger: Again, I am not a lawyer, but I do not believe that it does, no, not entirely. In fact, that is the predicate for what I am saying.

[Maria Eagle]

Q Do you agree, Sir David?

Professor Sir David Omand: Yes, I would agree with that.

[Damian Hinds]

Q Sir David, you have a long sweep of history to look back at, with GCHQ and your role as the first security and intelligence co-ordinator, and now in academia. Sir Alex was speaking earlier about some of the long-term trends and the blurring of boundaries. I think you used the phrase “the digital revolution”. I wondered if you might say a word about what you think are the biggest growing or evolving threats right now.

Professor Sir David Omand: From my experience, I would point to the consequences of the digitisation of every conceivable kind of information. That is proceeding apace. We have digital cities. Our infrastructure is now wholly dependent on IT.

In my recent book, I coined an acronym, CESSPIT—crime, espionage, sabotage and subversion perverting internet technology—and that perversion is going on as we speak. I will add one thought: I put “crime” in my acronym deliberately. If you take the activities of something like the North Korean Lazarus group, which was responsible for the WannaCry ransomware attack on our national health service, it is operating in order to obtain foreign exchange to pay for the North Korean nuclear programme and North Korean intelligence activity. In March, the group took more than $0.5 billion-worth of Ethereum currency from an exchange. This is large-scale larceny on behalf of a state.

My hope is that the powers in the Bill will help the police and agencies to deal with state-based criminal activity. I know that there are aggravated offences powers as well, which will help the police.

National Security Bill (Second sitting)

Maria Eagle Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Damian Hinds]

Q Mr Armstrong, with your China speciality, can you say anything about how that country’s approach to information ops has changed or is changing?

Sam Armstrong: Yes. China initially began—there is some really interesting stuff that has only happened in the UK in this space. We had a university that for a very long time rather openly advertised itself as providing services and specialist media training to officers of the Chinese propaganda Ministry, among others—various branches of the Chinese state—right here in London, metres away from the BBC. You also have the Confucius centre picture, which is important.

Where China has actually done very poorly is in its direct Government-to-Government disinformation. Some of the stuff that you saw around “Wolf Warrior” or that the Global Times—its state international newspaper—puts out is very ineffective. What China is incredibly effective at is not really that disinformation or misinformation public communications picture, but identifying individuals of influence within academia, business or wherever, and building up close relations with them. They are invariably people of influence, who in turn use their own networks to say, “Well, look, I’d be careful of all this talk about China. They are the biggest-growing economy on Earth, we really need to trade with them and we shouldn’t do anything to upset them at any point.” In so far as I have seen, that is where the Chinese influence picture has been focused.

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

Q I have a couple of questions. My first is for both of you. You have said slightly different things about the Bill, but is there anything that is not in the Bill that you think ought to be there and that would make a difference in the field in which you are doing research?

Sam Armstrong: Yes, there are two things. The first is the foreign influence transparency register system. I note that there has been a promise that it is to come, but the devil will be in the detail on that because there is a series of policy judgments that have to be made—whether it is expansive, where the teeth bite and so on. It is incredibly important that it is seen quickly.

Secondly, there should be an ability for the Secretary of State, either of the Home Office or the Foreign, Commonwealth and Development Office, to intervene in known problematic institutional relations. There are excellent powers here, such as the individual prevention and investigation measures, but there is very little capacity when that is done more corporately—to go in and say not just to universities but to companies, which would be an expansion of the Australian power, “This arrangement is not in the UK’s interest, and we are ordering you to terminate it.” To say that is a glaring omission is perhaps overstating it, but those are the two powers I would really like to see.

[Maria Eagle]

Mr Miller?

Carl Miller: There is nothing I dislike in the Bill. It makes a lot of sense to criminalise conscious influence activities linked to foreign states, but we should not think that it will have an appreciable impact on the kind of illicit influence operations that we know are happening.

[Maria Eagle]

Q My second question is about the foreign influence registration scheme, which the Government promised they would introduce during the passage of the Bill through the Commons. However, we do not quite have a Minister at the moment, apart from Mr Mann, who probably has not been deeply involved in the policy decision making thus far. I may be doing him wrong, but as a former Minister I know that it takes a bit of time to get up to scratch in a new brief.

Mr Armstrong, you obviously think the foreign influence registration scheme would help a very great deal. Mr Miller, would it make any difference to some of the issues that you have been discussing if it were clearer that some of the actors that work in social media that you have been talking about had to register?

Carl Miller: No, it will not. Identity is being hijacked and used at a very great scale, so we do not know who these actors are. To be honest with you, the way to start to reduce this activity is to try to create some cost and penalties for the people who do it. They are not doing it from the UK. The nature of the internet is that crime on the internet, like anything, passes unbelievably easily across borders, almost without being noticed. The way forward will be for us to create ways of reaching beyond our own borders and increase the costs. This might sound strange for a think-tanker to say, but we need to increase cyber-offensive activity against the criminal architectures that allow this kind of work to happen.

[Maria Eagle]

Q Are there powers that you would like to see in the Bill that are not in it and might help with some of this?

Carl Miller: It is difficult, because the web of powers that the intelligence agencies have to use cyber-offensive activity—various kinds of online action, such as device interference—is spread out across a number of different pieces of legislation.

One of the difficulties is that online influence operations are so widespread and common that most of them would probably not pass the thresholds for the intelligence agencies to become interested and engaged in them. That is one of the difficulties that we have with cyber-crime in general. A tremendous amount of it happens, but so much of the capability to do something about it is concentrated within GCHQ, and not in the police services that have to handle most of it. Sorry, that was a slightly amorphous and broad answer.

[Maria Eagle]

Q That is fine. Finally, Mr Armstrong, is there a foreign influence registration scheme out there that you think would be particularly helpful to import into this legislation? What is the best example?

Sam Armstrong: The Australian scheme is by far and away the best example—in my view, the US FARA system is not a good comparator—and it is a shame that we have not taken the opportunity to bring it in sooner. The Australian high commissioner in London was George Brandis, who was the Attorney General who wrote that very Bill, and I know he was keen wherever possible to impress on the Government that he was there and ready to help. I am sure that offer has not dissipated.

[Sally-Ann Hart (Hastings and Rye) (Con)]

Q I have two questions, if there is time. First, Mr Miller, you mentioned people who are employed online and you said that you do not think those people have any idea who is employing them. Clauses 13 and 24 state that

“a person commits an offence if…the person engages in conduct intending that the conduct, or a course of conduct”

and

“the foreign power condition is met…if… the person knows, or ought reasonably to know, that”

it is a foreign power. Do you think that should be widened to include an element of recklessness or recklessness?

Carl Miller: I think doing anything that might compel any of the services involved to do any kind of due diligence on the people who are employing them can only be a good thing, although the general point I am making is that I don’t think criminalising activity within domestic legislation has been a particularly effective way of changing what people do on the internet, especially when those people are largely concentrated in jurisdictions that do not have any co-operative relationship with British law enforcement.

I remember I spent time with a number of cyber-crime teams across the UK and, in the words of one cyber-crime police officer, “If you are in Russia, the cost or penalty of doing cyber-crimes against British citizens is basically nil.” This is not going to be an effective way of reaching beyond our borders and addressing where we believe a large number of actors doing this kind of thing are; they are not doing this from the UK.

--- Later in debate ---

[Damian Hinds]

Q Exactly, as long as they are part of our regulatory framework.

Louise Edwards: Yes.

[Maria Eagle]

Q We seem to have fairly decent regulation for participants in elections. We all know what imprints are, let us put it that way—anybody who has been elected knows what an imprint is. Some of the effort to perpetrate disinformation—to use a blanket term—whether that is successful or not, does not come from people who want to abide by the rules or who are keen to get their imprint on their material; that is precisely what they are not doing. Do you have any views about how we make it clear what is going on? In that respect, do you think that the foreign influence registration scheme that we are promised will be brought in during the Commons stages of the legislation will have a positive impact on identifying people who are trying to do this, or not?

Louise Edwards: You have hit upon one of the hardest issues here. Broadly speaking, people who are within the regime already—the established actors we have been talking about—comply with the law. Many of them, in fact, already put digital imprints on their online material, even though it is not yet a legal requirement to do so. The challenge is those who are perhaps based overseas or who do not want to play by the rules, basically. There are real enforcement challenges there, particularly when you are thinking about organisations or individuals based overseas.

If I go back to the recent Elections Act, one of the provisions that the Government brought in at that point was to lower the spending threshold in elections for people who are based overseas to £700: if you are an overseas entity, you can spend up to £700 campaigning in our elections, then that is it—that is your spending threshold. The problem is that, from our point of view, that can only really be symbolic, because it is virtually impossible to enforce spending at that low level. Even if we were to identify an overseas organisation spending in UK elections, they are overseas, so we have no enforcement powers that we can use to try to stop them.

I am painting a fairly awful picture, but there are some ways to tackle it from a slightly different perspective. For example, we have recently started launching a campaign before elections that is helping voters to look at online material with perhaps a more critical eye, to try to assess whether they should let it affect their vote and to give them a place to find out how to express concerns about that material, with the hope then being that we can perhaps raise confidence in legitimate digital campaigning while at the same time giving people an outlet if they see something they think is illegitimate. There is also a fair amount of work that you could do around political literacy at a very young age with voters, to help them to have that kind of critical perspective.

You mentioned the registration schemes. As a civil political finance regulator, our remit does not extend to matters of lobbying and influence, but one thing I would say, if I may, is that when it comes to the integrity of our democracy and voter confidence in it, transparency is key. Any registration scheme that brings more transparency around who is seeking to influence those involved in our democracy can only be to the benefit of the confidence of voters.

[The Chair]

Are there any other questions? Okay. I thank our witness for joining this Zoom call and for giving evidence. We will move on to the next panel.

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.

Births and Deaths Registration Act 1953

Maria Eagle Excerpts

Wednesday 25th May 2022 Commons Chamber

[Mrs Lewell-Buck]

I thank the hon. Member for that intervention, and I could not agree more. I will be echoing her comments later in my speech.

Last Sunday marked five years since 22 people were murdered in the Manchester Arena terror attack. My constituents Chloe Ann Rutherford, aged 17, and Liam Thomas Allen Curry, aged 19—a young couple deeply in love, full of hope for their futures—were brutally taken from their families in this attack. Since 2020, Chloe and Liam’s parents have spent days in the public inquiry, listening to every agonising detail of that horrific night. As the inquiry sessions have come to an end, they have been told that, owing to the Births and Deaths Registration Act, they cannot register their own precious children’s deaths.

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

I congratulate my hon. Friend on securing the debate. She is aware, I know, that I too have constituents who lost a child in those events. They have said to me that the lack of ability to register the death of their child has taken from them the last thing they felt they could do for her. Does my hon. Friend agree that reform of this provision would be a blessing for some of the families—although not all—who find themselves caught up in such dreadful public disasters, and feel that they are carried away with no control and no capacity to have an input in the final way in which their child is dealt with by the state?

[Mrs Lewell-Buck]

I thank my hon. Friend for her powerful intervention. She is, of course, right: families need to be able to grieve, and they cannot grieve if they cannot carry out this final, official act for their children. Instead, the registration will be done on their behalf by a registrar, effectively a stranger, a person who never knew their children. As their mams say,

“Look in the mirror, look in your heart, and you tell me, as a parent, if it was your child, you would be happy with a stranger registering your child's death?

“It’s the last thing we feel we can do as parents. As Chloe’s Mam I want to be the person who gives that information, because it’s personal and she’s my baby”.

We have been told that the rationale for this arrangement is that it would be too distressing for the families to register their children’s deaths, but it is surely not up to Governments or Ministers to decide what is and what is not too distressing for a family. Only a family can know how they feel. My constituents registered their children’s births; they should be able to register their deaths. Being unable to do so is what is causing them distress. We have a two-tier system, in which those whose loved ones died outside such horrific events can register their deaths, yet those who are feeling a pain that most of us will never experience cannot. It is in the gift of the Government to change this legislation, to introduce choice for families and to let them decide whether they wish to register the deaths of their loved ones.

If you will permit me, Mr Deputy Speaker, I would like to share some of Chloe and Liam’s story with the House. Their story, and their family’s pain, should help the Minister and those listening to understand the importance of the small yet very significant legislative change that we are requesting.

As a baby, Chloe was happiest swaddled and wrapped up in the love of her family, and Liam equally loved cuddles and being surrounded by the love of his family. Liam loved sport. He loved cricket, cycling and skiing. At just six years old, he picked up a cricket bat and never looked back, following in his dad’s footsteps as a left-handed batsman. In later years, it was at the cricket club that he made friends with Scott, Chloe’s older brother.

Chloe had always been a natural performer, her modesty making her talent even more striking. Chloe loved singing, dancing, playing the piano, ballet and tap. Being close to her big brother, she would sometimes pop along to the cricket, and it was there that she and Liam must have noticed each other, because it was not long before they started chatting to each other online. Dates followed, they fell in love, and their families were so happy that they had found each other. They said that they

“were made for one another, at their best when they were together”.

Their busy lives with work, study, sports and performing progressed in harmony, with Chloe at college and Liam at university, both also holding down jobs in the Hilton hotel in Gateshead. Liam’s cocktail-making skills earned him the enviable title of “the Tom Cruise of the Tyne”, while Chloe enjoyed the odd porn star martini and singing in her band, TwoNotes.

They also shared a love of travel. Chloe had an apprenticeship lined up at our local travel agent, Westoe Travel, and Liam was planning a future in the police force. Chloe and Liam had so many holidays planned—in fact they had planned their lives together, saving for a flat, marriage and children. It was all on the cards. In the words of Chloe’s dad, Mark, there was

“so much living to be done, all the stories not yet told, all the dreams not yet dreamt.”

Liam’s mam, Caroline, said:

“Two beautiful young people with so much love in their hearts and hope for their life together. The greatest thing we ever learn in life is just to love and be loved in return.”

On 22 May 2017, just eight weeks after Liam’s dad, Andrew, had sadly passed away, Chloe and Liam went to see Ariana Grande at the Manchester Arena and never came home. The lives of their parents Lisa, Mark and Caroline, their brothers Scott, Ryan and Zack and their entire families were shattered forever. These families have had everything taken from them. The whole inquiry process can leave people feeling powerless. As Lisa said, they feel like insignificant cogs in a very big wheel. To find that this one important final official act for their loved ones is denied to them feels cruel and heartless.

I sincerely thank the Under-Secretary of State for Justice, the hon. Member for Corby (Tom Pursglove) for meeting me and my hon. Friend the Member for Garston and Halewood (Maria Eagle), whose constituents also want the legislation to be changed. I also sincerely thank him for our meeting today with Chloe’s and Liam’s mams. I know he is in no doubt about how important this is and that he fully acknowledges how mentally exhausting and painful it is for them to be denied this choice. They and I know that legislative changes can take a long time, but we see no justifiable reason why this small change cannot be expedited, or at least why the families cannot be told whether it is possible. We have previously seen this Government rush through contentious and complex legislation for Brexit and covid, some of it in just one day. This does not seem overly complex or contentious, and I understand that it could be done though secondary legislation amendments to the Births and Deaths Registration Act 1953 and the Coroners and Justice Act 2009. When the will is there, the Government can and do act, and from today’s meeting with the Minister I am reassured that the will is very much there.

Lisa, Mark and Caroline, in the time I have known them, always think of others. It is clear to see where their lovely children got their kindness, drive, intelligence and passion from, so it is not surprising that they used their pain and grief to set up the Together Forever Trust, which gives grants for sports and performance to young people so that their children’s legacy can help others to achieve their dreams. So far, they have handed out 250 bursaries that have changed the lives of hundreds of children. These are families who always give; they have never asked for anything until now.

In our meeting today, Lisa spoke about how at the outset they were told that their children did not belong to them, and that they belonged to the state as a crime scene. She said that, despite the rhetoric we always hear about families coming first, they do not, but by making this change the Government can prove for once that families do come first. Caroline explained that registering Liam’s death will allow her to begin grieving, and that if she cannot do this last thing for him, she will feel like she has failed him. Lisa rightly told her that she will not have failed him, as it is the state who has failed him.

I am convinced that the Minister will come good on his promise to the families that he will urgently look at whether and how these changes can be made, and I know that he will let us know as soon as he possibly can. South Shields is a small town with a big heart, and we are all pleading with the Minister to make this change, because Chloe and Liam will always remain in our hearts and minds, together forever. Their parents will never give up fighting for what is right for their precious children, and as their MP, I won’t either.

[The Parliamentary Under-Secretary of State for Justice (Tom Pursglove)]

I thank the hon. Member for South Shields (Mrs Lewell-Buck) for securing a debate on this most difficult and sensitive of issues, and for the way in which she and the hon. Member for Garston and Halewood (Maria Eagle) have approached the issue entirely constructively and in a spirit of wanting to resolve it on behalf of their constituents.

As the hon. Member for South Shields said, this debate marks the fifth anniversary of the terrible events at Manchester Arena, about which she spoke so movingly. I know the past few days have been particularly difficult for all the families caught up in that terrible tragedy. I know I speak for the House, and for the country as a whole, in saying that our thoughts are with them at this most difficult of times—I know it feels particularly acute as the anniversary is marked. Of course, our thoughts are also with those who were injured and with all those who responded so professionally and thoroughly on that terrible evening. We thank them for their heroic work in making sure people were safe.

I respond to this debate as the Minister responsible for coroner and inquest law and policy, but I am also privileged to be the victims Minister. It is in that capacity that I place on record my deepest sympathy and condolences to all those who lost loved ones or were affected by these shocking events five years ago. Their bravery is an inspiration to us all.

It is never easy to cope with bereavement in any circumstances, but I cannot imagine how difficult it must be to deal with the distress of losing a loved one—and, for many of those involved in the Manchester Arena tragedy, a child—in such shocking and traumatic circumstances. I pay tribute to the dignity and courage with which the families have faced their terrible losses and the subsequent investigations. As the public inquiry into these dreadful events continues, I take this opportunity to acknowledge the assistance and support provided to the bereaved, particularly by the inquiry team.

The chairman of the Manchester Arena inquiry has outlined that its report will be published in three volumes. Volume 1 was published on 17 June 2021 and addresses the security arrangements at the Ariana Grande concert. Volume 2 will examine the emergency response to the attack and what happened to each of the deceased. Volume 3 will consider whether the Security Service and counter-terrorism police could and should have prevented the attack.

The inquests into these tragic deaths are formally suspended pending the outcome of the public inquiry. Sir John Saunders, the chairman of the public inquiry, is also the coroner dealing with these tragic deaths. I assure the House that this is normal in such circumstances.

With the inquiry having completed hearing oral evidence and proceeding towards the publication of volumes 2 and 3, its chairman will, in due course, conclude his responsibilities as coroner for the victims’ inquests. At that stage, he will provide the relevant information to the registrar to enable each death to be recorded in the death register in the appropriate way.

[Maria Eagle]

I thank the Minister on behalf of my constituents for his swiftness in arranging to see them tomorrow. They very much look forward to putting their points to him directly.

Does the Minister agree that it is natural for families in such circumstances, no matter how helpful the state has been to them throughout the public inquiry and the coroner’s inquest, not to feel like a party to the proceedings, because they are not technically a party to them? Does he understand, therefore, how important it is for them to be able to come in at the end and do right by their lost children? That is the key to this. Does he agree that it is important that they have the choice? No one is saying that everyone should be forced to do this, but the families must have the choice. That is what is being sought.

[Tom Pursglove]

I am very grateful to the hon. Lady for her intervention. Again, I feel privileged to be meeting her constituents tomorrow to discuss this and to hear from them precisely how they feel these matters have been handled. Of course, I would expect the investigations team to handle this with extreme care, real sympathy and due regard to the victims’ families, making sure that they are kept informed and that their needs are properly attended to. I hope that through what I am able to say in the remainder of my remarks, I will be able to provide her with reassurance about my thinking on this. I entirely take on board the point she raises about optionality, and the gravity of a death being registered and the desire for families to be involved in that process. I will continue with my remarks and I hope that they will help to provide some of the reassurance that I know she is seeking.

I have been truly sorry to learn, both in previous exchanges with hon. Members and directly from some of the families, that the requirements for registration in these circumstances have added to the pain and distress felt by some of the victims’ families. We have heard this evening about the commitment of the families of Chloe and Liam in fighting for the ability to complete this one final act for their children. I had the privilege of meeting Lisa Rutherford, Chloe’s mum, and Caroline Curry, Liam’s mum, earlier today, and I would like to put on record my thanks for their time and for setting out so clearly why this issue matters to help them with the grieving process. What they have been through is almost impossible to comprehend. Chloe and Liam were clearly exceptional young people who had great talents, and their lives were taken far too soon. That is a terrible tragedy for their families to have to bear and a huge loss not just to their families, but to their wider community, to which they were clearly contributing, in their different ways. In a moment, I will set out the reasons why that responsibility lies with the coroner, rather than the family, in cases involving an inquest, but first I want to restate the Government’s commitment to ensuring that bereaved families remain at the heart of the coroner service. With that in mind, I want to stress that I am committed to learning, both from the specific concerns we are debating tonight and from the families’ wider experience of the formal processes following the Manchester Arena attack.

But now let me explain the reasons behind the existing arrangements for registering a death following an inquest and, crucially, why they differ from the registration of deaths where no inquest has taken place. The Births and Deaths Registration Act 1953 requires all death registrations to be completed by a registrar. For the majority of deaths, a “qualified informant” provides the information recorded in the register, and this is supported by a cause of death certificate provided by either a medical practitioner or a coroner. The “qualified informant” is usually a family member, and I understand that it is this role that some families, such as those of Liam and Chloe, want to be able to fulfil. But where an inquest takes place, as it has for the Manchester Arena victims, it is, by law, the inquest process itself that must establish the deceased person’s identity and the details of how, when and where they died. To ensure that the inquest and registration details fully align, it is also a legal requirement that, following the inquest, this information is provided to the registrar by the coroner. Because of these requirements, there is no further information that the family can provide for the purposes of registration, over and above what has been established by the inquest and submitted by the coroner. I understand, of course, that the families whom the hon. Members for South Shields and for Garston and Halewood are representing, and others like them, want to have a role in the registration of their loved one’s death. So I also understand why they are pressing for a change in the law to support that. I can assure both hon. Members and the House more widely that I am actively following up on my commitment to consider, as quickly as possible, whether there might be an appropriate solution to this difficult and sensitive issue, with which I have real sympathy.

We must also remember that, as the hon. Member for Garston and Halewood alluded to, many bereaved families, having already experienced the inquest process, might find that the additional responsibility of registering the death adds to their distress rather than eases it. We know that to be the case in some circumstances and for some families, so choice is important. Some families may not want to have to attend the register office to be questioned again about the information they have already provided in the inquest. Some families might not be able to do so, or simply may not understand that they are expected to carry out the responsibility. We have some insight into this from the fact that a number of deaths—around 200 or so each year—remain unregistered because there has not been an inquest and the bereaved family, for whatever reason, do not follow up on the necessary process.

Given the need to balance different experiences and wishes, I have discussed with both hon. Members the possibility of providing families with the choice, rather than an obligation, to be involved in the registration arrangements. We have also discussed options relating to combining the family’s involvement with the coroner’s existing role. Those are possibilities but, as our discussion this evening has shown, this is a complex issue that involves more than one system. As such, we have to be mindful of a real concern about the potential for unintended consequences. This issue needs to be thought through carefully and sensitively. We must not make any changes that, although well-intentioned, might cause confusion or additional stress for bereaved families because of additional complexity in the system.

I absolutely reiterate my commitment to looking at this issue with the utmost priority and to keeping both hon. Members updated every step of the way. I hope that the families of Chloe and Liam will be able to take comfort from the fact that, by raising this very important issue for the sake of the loved ones they have lost, they have provided a voice not only for others bereaved by the dreadful events of five years ago but for the families who, sadly, will lose loved ones in difficult circumstances in times to come. I hope they will see this debate as part of the legacy they have been working to establish in their loved ones’ names and memories, to which I pay tribute. I also pay tribute to the charitable work that the hon. Member for South Shields set out.

In addition to looking at whether we can introduce choice for families, I will look at how information for the bereaved at inquests can be improved to ensure that the arrangements for the registration of their loved one’s death is clearly explained to them as early as possible in the investigation process—an issue we have touched on in previous conversations on this issue.

It remains for me only to thank hon. Members once again for the opportunity to discuss this issue tonight, and to say to the families of Liam and Chloe, to the constituents of the hon. Member for Garston and Halewood, and to all those affected by the terrible events of five years ago, that my thoughts are with you at this very difficult time, and for the future.

Police, Crime, Sentencing and Courts Bill (Twentieth sitting)

Maria Eagle Excerpts

Committee stage
Thursday 24th June 2021 Public Bill Committees

[Sarah Jones]

It is a pleasure to serve under your chairmanship, Mr McCabe. I rise to speak to new clauses 45, 46 and 62. New clause 45 would introduce a new penalty for assaults on retail workers, with a 12-month maximum. This issue has been debated in the House on many occasions, and the Minister was in Westminster Hall talking about it only a couple of weeks ago, so we know that there is cross-party support for these measures. New clause 45 replicates the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021 in introducing a new penalty for a range of behaviours against retail workers and includes provision for an aggravation when this occurs during the enforcement of statutory age restriction. It is a comprehensive new clause that defines this behaviour, retail worker, work and premises. New clause 62 would introduce a specific new offence with a specified penalty for assaults committed as a direct result of workers enforcing statutory age restrictions.

I thank the Co-operative party, the Union of Shop, Distributive and Allied Workers, the British Retail Consortium, the Association of Convenience Stores, Tesco and others for their brilliant campaigning, in many cases over a number of years, to achieve greater protection for shop workers. They have been a huge help with this Bill. I also pay tribute to my hon. Friend the Member for Nottingham North (Alex Norris), who has campaigned tirelessly for greater protections for retail workers since he was elected, most recently through his Assaults on Retail Workers (Offences) Bill. On behalf of the Opposition, I also thank our shop workers, who have made such an extraordinary contribution throughout this pandemic.

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

Has my hon. Friend heard, as I have in my constituency, that assaults and threats towards shop workers have actually worsened during the pandemic? They were at quite a bad level before, but things are worse as a consequence of the pandemic. Perhaps more thought therefore needs to be given by this House to this kind of provision.

[Sarah Jones]

My hon. Friend is absolutely right. I will shortly cite figures that bear out the suggestion that assaults have increased during this period. We saw a raft of assaults during periods in which provision of certain foods was scarce, and when people objected to being asked to wear masks. During covid, we have all come to recognise the importance of shop workers in a way that we perhaps did not previously, although we should have done.

As I have said previously in Committee, Labour welcomes the new clauses that will increase the maximum sentence for assaulting an emergency worker from 12 months to two years. However, the Government’s decision not to include additional protections for shop workers represents a failure to listen to voices from the frontline and to recognise the exponential rise in abuse of retail staff over recent years. Retail workers kept our country fed, clothed and kept us going. However, many faced unacceptable attacks while working to keep us safe, from being spat at or punched to verbal abuse and intimidation. Such attacks should be met with swift and meaningful punishment, and yet the Government have decided not to introduce additional protections at this point. We ask them to think again.

In 2020, we saw a spike in abuse, threats and violence against retail workers. The BRC annual retail crime survey, which was released at the end of May, showed that violence and abuse against shop workers continued to grow to 455 incidents every day, representing a 7% increase on the previous year. ACS’s 2021 crime report shows that greater action is needed to tackle violence against shop workers. An estimated 40,000 violent incidents took place in the convenience sector over the past year, with approximately 19% resulting in injury.

--- Later in debate ---

There are similar offences under the Children and Young Persons Act 1933, which might merit similar reform—a similar increase in sentence. We do not want to overlook that. I am not announcing Government policy, but articulating a consideration.

[Maria Eagle]

You are only the Minister.

[Chris Philp]

I am not Lord Chancellor, though.

We might separate the “cause” part from the “allow” part because “cause” and “allow” are somewhat different.

[Maria Eagle]

If we separated “cause” and “allow”, would we not be in the same position of not being able to prove which of the parents did the deed?

[Chris Philp]

The “allow” part could conceivably apply to both where there are two parents. It can probably be established that they must have been aware of the abuse because they must have noticed the kind of abuse we are talking about, but it cannot necessarily be proved that they did it or even that they caused it. Currently, it is “cause or allow” in the same offence, with the same maximum penalty. One could make a case that the “cause” bit is more serious than the “allow” bit, so they might have different maximum sentences. I have a commitment from the Lord Chancellor that I can relay to the Committee.

[Maria Eagle]

I am going to be pedantic now, but if the offences are separated yet the cause cannot be proved, the charge will have to be on the “allow” bit, which is the lower level of offence.

[Chris Philp]

Yes. We could have different maximum penalties for each of those, and even the lower one could be higher than the current penalty, so we could still make progress from where we are today.

I have a commitment from the Lord Chancellor that he will look at this in broadly the way that I described, also looking at the 1933 Act.

Police, Crime, Sentencing and Courts Bill (Seventeenth sitting)

Maria Eagle Excerpts

Committee stage
Tuesday 22nd June 2021 Public Bill Committees

[Victoria Atkins]

I hope the Committee will understand that it is taking us time to work through the 180,000 responses that we received—an extraordinary number for any Government survey. We have a team of officials who are working through each and every response, and we have taken each and every response very seriously. It is taking a bit of time. Once that exercise, the results of the survey, has been fully understood—fully collated and absorbed—from that, the strategy will be shaped. Later this year, we hope to be able to publish.

The strategy will deal not just with the sorts of topics that have been discussed in the course of the Committee, along with many other forms of crimes that disproportionately affect women and girls, including, for example, female genital mutilation, so-called honour-based abuse and such like. We want this to be an ambitious strategy that meets the demands of the 2020s, including the emergence of online crimes. We know from our discussions of this Bill and the scrutiny of what became the Domestic Abuse Act 2021 that perpetrators of crime can find ample opportunity online to continue their abuse. We are being mindful of all those aspects when drawing up the strategy.

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

The Minister is indicating a willingness to look carefully at this. Does she expect the strategy to which she is referring to end up creating new legislation? Does she expect new legislation to come out of it?

[Victoria Atkins]

The hon. Lady is asking a question I cannot properly answer at this stage. She will know from her previous experience that drafting strategies of such depth and breadth requires cross-Government work. I am not at a stage at the moment of being able to comment directly on that. Our wider work, such as commissioning the Law Commission to look at the use of the internet and image-based abuse, which I suspect we will be talking about later this morning, and the online safety Bill, is all part of ensuring that there is lots of work across Government knitting together to provide a safer environment for women and girls, both on and offline.

We are aware that the issue is not just about the public knowing and understanding what the law is, but helping the police in knowing how to respond. I am pleased that the College of Policing has agreed to develop advice for forces in England and Wales to assist them in using existing offences in the most effective way. The Crown Prosecution Service, similarly, will revise its legal guidance on public order offences to include additional material on public sexual harassment.

Hon. Members across the Committee will agree that legislation alone cannot be expected to tackle sexual harassment. We are clear that we need to continue to drive a cultural change in attitudes and help boys and girls grow up to understand what a healthy relationship looks like and what sort of behaviour is healthy, respectful and civil in public places, and we must ensure that the sorts of episodes that girls in particular referenced in the Everyone’s Invited work are no longer experienced. I acknowledge and appreciate the debate that the amendments have induced and understand what hon. Members are seeking to achieve through the new clauses. However, I hope that, given our assurance that the Government continue to explore the issues, the hon. Member for Stockton North will feel able not to press the new clause today.

--- Later in debate ---

[Maria Eagle]

“Rare” is a relative concept. Would the Minister like to tell us how many people were remanded in this way during, say, the last year for which he has figures?

[Chris Philp]

I am afraid that I do not have that precise figure to hand: I was relaying reports I have received from people who are active in this area. I can certainly see if that figure exists, and if it does, I would obviously be happy to share it.

The intent behind this amendment is clearly to ensure that prison is used only when strictly necessary. Of course, when somebody has a mental health crisis, for example, prison is not ultimately the best place for them to be, but there may be limited circumstances in which it is necessary to use remand for someone’s own protection—as a last resort, as I say. There is a risk that if we abolish this power without being absolutely clear what the alternatives are, vulnerable people could be left exposed. The Government agree with the sentiment behind this amendment, but we want to be certain that there will be no unintended consequences and no gaps created as a result.

[Chris Philp]

Clearly, the provision of alternative accommodation in those circumstances is the most desirable outcome. We need to think carefully and make sure we have covered the full range of circumstances that may arise. That is why the Government have committed to a review of this issue. We have already written to the all-party parliamentary group on women in the penal system to set out our plan for this, so that is in the public domain. I know the Howard League for Penal Reform has been campaigning in this area and it will be consulted as part of that review.

[Maria Eagle]

I am grateful to the Minister for giving way again. I welcome the fact that he is going to conduct a review. In doing that, could he see whether any research already exists or do some research on what the outcomes are for the small number of people who are remanded in this way? I can certainly see circumstances in which they might end up in a worse state than they would have done had they not been remanded in such a way. That is important if the Minister is considering whether to get rid of these provisions.

[Chris Philp]

Yes, that is exactly the type of question the review should consider, along with the counterfactual question of what would happen if this measure is not used. Both alternatives need to be considered to reach an informed decision.

--- Later in debate ---

[Chris Philp]

Having spoken to new clause 4, let me turn now to new clause 20. As the hon. Lady says, it moves the discretion away from a judge and makes it the witness’s choice whether the section 28 recording is conducted. We want to encourage as many eligible people as possible to make use of the special measures that are available, and we have taken a number of steps to ensure that objective. For example, the revised victims code, which came into force just a few weeks ago, on 1 April, focuses on victims’ rights and sets out the level of service that victims can expect to receive from criminal justice agencies. The code also enshrines victims’ rights to have their needs assessed by the police or a witness care unit in order to determine whether they are eligible to give evidence using special measures and would benefit from doing so, to help relieve some of the stress involved in giving evidence. We want to ensure that every single eligible witness is identified, and that the matter is actively considered.

[Maria Eagle]

Does the Minister accept that many of these offences leave the victims feeling powerless? Powerlessness, and having things done to them, is part of the horror that arises from such offences. To give victims agency—to allow them to decide for themselves in those proceedings what would work for them—would be a powerful fillip to their psychological wellbeing, so that the court system is not then doing to them, after they have had the perpetrator doing things to them, and all the while they are feeling powerless. The Minister could do a lot of good by accepting the provision.

--- Later in debate ---

[Chris Philp]

That is exactly the kind of question the taskforce will be considering. Under the 1968 Act, theft is a triable either-way offence, which means it can be tried in the Crown court or the magistrates court. One matter the taskforce might consider is where the more serious of those offences are prosecuted. The option of the CPS seeking to have more of the cases tried in the Crown rather than the magistrates court could be explored, and that is a topic the taskforce most certainly may consider.

It is also worth mentioning that, in addition to the work of the taskforce and the existing powers relating to a maximum sentence of seven years, there is a lot more the Government are doing. For example, in the area of animal welfare, we are introducing legislation to recognise animals as sentient beings and putting animal welfare at the heart of Government policy decision making. We have also supported calls for increasing the penalty for animal cruelty from six months to five years under the Animal Welfare (Sentencing) Act 2021, which received Royal Assent in April.

[Maria Eagle]

The Minister is making an interesting point about classifying animals in law as sentient, which is overdue. Does he foresee such a change leading to changes in this legislation? Theft of a sentient being appears to be a somewhat different offence from theft of what is currently seen as an object with monetary value.

[Chris Philp]

On monetary or emotional value, the Sentencing Council guidelines recognise emotional value and non-monetary worth. The hon. Lady asks about the interaction between the 2021 Act and sentience, on which we are looking to legislate. That is the kind of topic that the taskforce will have in mind. It is an interesting point, and I will ensure that it features in the taskforce’s deliberations.

Given the work that the taskforce is doing across a far wider area than the criminal offence, and given that the criminal offence already has a maximum of seven years and that emotional value is recognised, I feel that the taskforce is doing the necessary work to step up action in this area. We recognise that there is a problem. More needs to be done, and the taskforce is doing it.

Police, Crime, Sentencing and Courts Bill (Sixteenth sitting)

Maria Eagle Excerpts

Committee stage
Thursday 17th June 2021 Public Bill Committees

[Chris Philp]

I thank the shadow Minister for his speech. Interestingly, it pulled in two different directions. On the one hand, he quoted the Bar Council’s concerns about whether the jury principle might be undermined, but then he moved a series of amendments that would considerably increase the scope of the clause. Those two points clearly pull in opposite directions, perhaps suggesting that the clause as drafted is about in the right place.

As the shadow Minister eloquently laid out, once again, clause 164 permits a stranger—a so-called 13th member—to enter the jury room where that person is a British sign language interpreter, to assist a deaf juror in participating in the proceedings. Both sides of the House have agreed that that is a good idea. The shadow Minister read out a quote from the Bar Council that raised some concerns about the sanctity of the jury room being infringed. That is of course an important principle in law. I sat as a juror at Croydon Crown court during the summer recess a couple of years ago, so I know that that is something that the system protects fiercely, and rightly so.

I assure the shadow Minister and the Bar Council that several safeguards are in place to ensure the BSL interpreter cannot unduly influence proceedings. They have to sign an agreement that includes confidentiality and other provisions, and undertake not to engage in any behaviour that might be of concern. They swear an oath to the same effect, and breaking it would be a criminal offence. Only BSL interpreters on the proper register can be used, so someone cannot be picked off the street and wander in; it has to be somebody who is on the approved register to start with.

The shadow Minister asked about the possibility of error. I believe that the intention is to have two BSL interpreters present just in case one makes a mistake or loses attention for a moment, so there is a safeguard there. Of course, if any member of the jury witnesses behaviour that concerns them, it is always open to them to report the matter to the trial judge. I hope that the safeguards that I have just outlined address the points that the shadow Minister and the Bar Council raised.

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

If jurors break their oaths and say things outside or reveal things that they should not, there can be contempt proceedings and punishments. Will the same punishments apply to the interpreters? The Minister has set out a number of contractual arrangements, which are all well and good, but will the same obligations lie upon the interpreters as lie upon jurors?

[Chris Philp]

Yes, I believe—in fact, I know, because it is written down in front of me; that is not quite the same thing, but let us assume it is for these purposes—that the provisions create a new offence where a BSL interpreter intentionally interferes in or influences the deliberations of the jury in the proceedings before a court. Yes, there are now criminal provisions being introduced by the clause.

I understand the spirit in which amendments 147 to 161were moved by the shadow Minister, and he mentioned that the hon. Member for Nottingham South assisted in their development. I understand that widening the type of people who might be able to assist could help a wider range of jurors, but there are some concerns about going too far, too quickly.

As the shadow Minister pointed out, this is a significant step. It is a significant departure from centuries of established practice. Allowing a 13th person into the jury room has never been done before. There is a feeling among the stakeholders we consulted—the judiciary, the Bar and so on—that we should take this one step at a time. Let us start with British sign language interpreters and see how that goes. If it is made to work successfully, as we hope it will be, we can look in due course at widening the range of people who might be accommodated.

There are also, I should add, potential capacity constraints. For example, I am told that there are 150 registered BSL interpreters, but only 32 speech-to-text reporters, so one might have issues with the number of available people. This is an important step. Let us take this one step first and then review it on an ongoing basis to see whether we need to go further.

Police, Crime, Sentencing and Courts Bill (Thirteenth sitting)

Maria Eagle Excerpts

Committee stage
Tuesday 15th June 2021 Public Bill Committees

[Chris Philp]

Under ECHR and common-law provisions, we cannot extend a sentence beyond what was handed down by the court. Of course, that was the big problem with the old IPP sentences, where people could stay in prison forever; indeed, there are still people in prison under IPP sentences.

We have to work within the envelope—within the maximum sentence handed down by the court originally for the offence originally committed. The judgment is essentially to be exercised by the Parole Board on how best to protect the public, by striking a balance. Do we leave people in prison for the whole time or do we release them a bit early with a period on licence? That is a judgment that the Parole Board has to make to best protect the public. In some cases, if it thinks that the risk is very high, it may consider that the whole term in prison is the best way.

Take the example of the six years. The Parole Board may say, “Well, six years in prison is better than five years in prison followed by one year on licence”. It is a judgment that the Parole Board must make. We cannot reasonably go beyond that six years, because that would be potentially unjust: we would be punishing someone and imposing a sentence that was longer than that originally handed down by the court for the offence of which they were convicted. That would be contrary to natural justice, common law and ECHR provisions.

That is why the measure is designed as it is, and I hope that makes sense.

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

The old IPP sentences had their problems; they were much too widely used and were not originally intended to be that widely used. There was an issue about them, certainly. However, would not that kind of sentence—one that was indeterminate but able to be cut short when the individual concerned could demonstrate that they were no longer dangerous—be the answer in some of the kinds of tangents that the Minister is talking about?

The Minister seems to be tying himself in knots, to say, “Well, it’s going to be either three years or six years, but we all know that the person is coming out at the end”. Originally, IPP sentences were legislated for to deal with this very issue, but of course they ended up being too widely used. Is there not a better way of reintroducing some kind of IPP sentences that would enable greater safety but be much more narrowly used?

[Chris Philp]

Can I clarify whether the hon. Member is talking about potentially indeterminate sentences?

[Maria Eagle]

Yes.

[Chris Philp]

She is. Okay.

We debated this issue internally, when we were designing the clause. Clearly, one of the options considered was reintroducing some form of IPP sentence, which is, as the hon. Lady said, indeterminate, meaning that it could go on forever. That was not done because there is potentially an inherent injustice. We have been using the example of kidnap, so let us keep using it. If someone commits that offence and the judge decides that six years is the right sentence, to then say that that person, having been given a fixed sentence, could spend the rest of their life in prison because of a risk that they might offend later—they had not committed a more serious offence; it is just that they might—struck us as being inherently unjust.

Do hon. Members remember the film “Minority Report”, where people were incarcerated because it was judged that they might commit an offence in the future? If we get into the territory of imposing a penalty, which could be imprisonment forever, because someone might commit an offence rather than because they actually have committed an offence, we are straying into potentially slightly dangerous territory.

[Maria Eagle]

I was not suggesting that; I was not suggesting that people who have been given determinate sentences should then arbitrarily suddenly find themselves with an indeterminate sentence. What I was suggesting was that perhaps there are a small number of cases for which it would be appropriate to reintroduce the possibility for judges to give indeterminate sentences again. The problem with the IPP was that it was much too widely used; I think the wording was too broad and it was much too widely used by sentencers. But the purpose of it was to deal with just these cases that the Minister is talking about.

I am not suggesting that somebody who has been given a determinate sentence should then arbitrarily be given an indeterminate sentence. However, if an indeterminate sentence for public protection was available in very narrow circumstances to judges, would that not fill this gap in a more coherent way than the way in which the Minister is trying to do it?

[Chris Philp]

Clearly, if the original offence for which the offender is sentenced is one of the more serious ones that we have been talking about—for example, even offences that we consider to be moderately serious, such as committing grievous bodily harm with intent, have life sentences—the judge can, if he or she chooses, impose a life sentence and set a tariff for consideration for release, so there is flexibility. We are talking about cases where the original offence is not one of those very serious ones that has a life sentence, but one that has a fixed determinate sentence. I think the hon. Member is asking if we can give the judge the power to say that, even though the original offence has a fixed maximum sentence of, for example, only five years, they will override that and say, “Actually, for some reason that is not to do with the original offence, but is just to do with some other assessment of public risk, I will give you an indeterminate sentence.” I think that is the question.

[Maria Eagle]

indicated dissent.

[Chris Philp]

No, it is not.

[Maria Eagle]

Not quite. I was suggesting that perhaps the Minister should legislate for indeterminate sentences in particular circumstances and give the judge that discretion, but in a much narrower band of offences than those that ended up getting indeterminate sentences in the past. Indeterminate sentences have all been abolished now—they cannot be used. If I might say so, it seems that the Minister is trying to deal with the very issue that they were introduced to deal with in a very convoluted manner.

[Chris Philp]

No, we are trying to do deal with the issue of prisoners who become dangerous, or who clearly pose a danger to the public, while they are in prison, but without doing what IPPs did. IPPs were abolished for a reason in 2012: people who committed a particular offence with a fixed sentence of, say, five years could end up in prison forever. As I have said, for more serious offenders the judge has the option of a life sentence, but we do not think it is right that someone could commit an offence with a fixed sentence, such as five years, and end up in prison for life, not for an offence they have committed, but for one that they might commit in the future.

This is the best way of balancing that public protection consideration against natural justice—that the punishment should fit the crime—and avoid a “Minority report”-type situation where someone is incarcerated for a crime that they may commit in the future, but have not yet committed. This strikes the right balance. We stay within the envelope of the sentence handed down by the judge. The judge has the option in serious cases to hand down a life sentence already, but we have just changed the release provisions.

We have debated the clause relatively extensively, Sir Charles. It strikes the right balance between natural justice and protecting the public. On that basis, I commend it to the Committee.

--- Later in debate ---

Yet for Labour, the concept of problem-solving courts is of course anything but new. The first substance abuse courts were launched in Wakefield and Pontefract in 1998. In 2005, seven pilot specialist domestic violence courts were launched, which was swiftly expanded to 23 sites the following year; and in 2009 the first two mental health problem-solving courts were launched. Each of these achievements was made possible under a Labour Government, so for the Opposition, problem-solving courts are not a new endeavour at all. The White Paper states that the three areas of focus for the pilot of problem-solving courts will be substance misuse—as with those established in Wakefield and Pontefract—female offenders, and perpetrators of domestic abuse.

[Maria Eagle]

Of course, there was also the North Liverpool community justice centre, which I think the Minister may have referred to, which extended the problem-solving court technique to all kinds of offences, not only specifically drug or alcohol offences, domestic violence or mental health issues, and it was very successful.

[Alex Cunningham]

Indeed, that was the case. We have so much to learn from the best practice around the country, but also from what happened before this Government varied those types of courts when they came to power in 2010.

In total, the Government have committed to piloting five problem-solving courts, targeted at repeat offenders who would otherwise have been sent to custody. The Bill builds on those proposals by laying the legislative framework for the pilots to take place—specifically, clause 128 introduces schedule 13, which will give problem-solving courts the power to periodically review community and suspended sentence orders, and to commit an offender to custody for a breach. The pilot of problem-solving courts is welcome.

The evidence is clear that problem-solving courts have proven hugely effective—for example, in restoring confidence in the criminal justice system among marginal communities. As the Government’s own response to the Lammy review set out:

“Trusted figures in the CJS were described as those who had taken the time to get to know an individual, their background and specific needs and vulnerabilities.”

Moreover, if rolled out nationally, the pilot of problem-solving courts would also play an important role in reducing the huge burden on our courts system, while ensuring short custodial sentences are used only if completely necessary.

Although the Opposition support the powers in clause 128, we have some concerns, and I would be grateful if the Minister responded to them this afternoon—sorry, this morning. It is still morning!

First, as Women in Prison points out in its helpful briefing:

“In order to be considered for a problem-solving court approach, a person must first enter an admission of guilt for the alleged offence.”

The briefing goes on to note that the review conducted by my right hon. Friend the Member for Tottenham (Mr Lammy) found:

“Black, Asian and minority ethnic people are more likely to plead not guilty to alleged offences. We know that experience of racism and lack of trust in the criminal justice system prevents people from feeling that they will be treated fairly if they plead guilty.”

I know that we have already raised this issue in debate, but therein lies a difficulty that the Government will have to contend with as they pursue their pilot of problem-solving courts. As the Prison Reform Trust explains, while, on one hand, problem-solving courts have been useful at restoring confidence in the criminal justice system for those in marginalised communities, for them to be wholly successful,

“pilots must work with people who enter not guilty pleas, and on added measures that are likely to increase confidence in the process.”

I know the Minister said that the Government would do what they could to overcome that problem, but what that is, or could be, is still far from clear. Can he be more specific by explaining what steps the Government are taking on the issue of not guilty pleas and to avoid exacerbating the disproportionality that already exists for black, Asian and minority ethnic people in the criminal justice system?

Secondly, if problem-solving courts have already shown themselves to be effective in providing rehabilitative alternatives to custody, why have the Government chosen to pursue such a limited pilot rather than a larger national roll-out? Thirdly, what will the Government do to resource properly the probation and other services that work with offenders who are dealt with through problem-solving courts? The Minister knows, as I do, that resources are thin. If they are not there, the system will fail. Finally, will he report back to Parliament on the success rate of the pilots, and if so, what would the Government look for before they could commit to a national roll-out?

I will be very brief on clause 129. While clause 128 and schedule 13 provide the legislative foundation for the pilot of problem-solving courts, clause 129 and schedule 14 would enable the courts involved in the pilot to impose drug-testing requirements as part of a community sentence or a suspended sentence order. As the House briefing sets out, a court would be able to impose drug-testing requirements only where the two following conditions are met: substance misuse has contributed to the offence to which the relevant order related, or is likely to contribute towards further offending behaviour; and the Secretary of State has notified the court that arrangements to implement drug-testing requirements are available in the offender’s local area. Taken hand in hand with clause 128, the Opposition are happy to support clause 129.