National Security and Investment Bill

Baroness Winterton of Doncaster Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 17th November 2020 Commons Chamber

[Bob Seely]

My right hon. Friend is making an excellent point in an excellent speech. He is highlighting the need to understand national security not only as individual events and individual companies, big or small, but as a series of cumulative processes. Those gradual processes, over time, are as important to understand.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Just before the right hon. Gentleman replies, let me give a gentle reminder that we have a lot of speakers still to go and I know the Minister wants to give a full reply at the end.

[Sir John Hayes]

I am terribly grateful, Madam Deputy Speaker. I do not know whether it was the persuasiveness of the case I was making or its imperfection that has encouraged 1,001 people to intervene on me. Perhaps it was the latter, but I will give way no more and move to the concluding part of my oration.

There are questions to be asked about the proposals before us. I touch on one more before I reach my exciting summary. The Bill provides for the Government to apply to use closed material proceedings. My hon. Friend the Member for Isle of Wight (Bob Seely) and the right hon. Member for North Durham made the point about connections to other expertise, both within Government and beyond it, so how will that be impacted, given the closed material proceedings? How will closed hearings be managed effectively? I think the House will want to know the answer to that.

I said that the Bill is welcome, and it is certainly is, because it provides the means by which, for the first time, Government will consider matters of profound concern very much in line with the recommendations of the 2013 report. That report identified:

“The difficulty of balancing economic competitiveness and national security”

and suggested that it had reached a “stalemate”. With this Bill, we have moved on from that stalemate. Given the scrutiny the Bill will enjoy, in the spirit that this kind of legislation normally does, as the whole House will want to get this right, and given the Government’s willingness to listen and to take on board some of the points that have been made today and that will be made in further scrutiny, I have every confidence that we may end up with a very good piece of legislation that is fit for purpose. Edmund Burke said:

“Early and provident fear is the mother of safety.”

Sometimes it is important to be a little fearful in order to be provoked to take necessary action. In taking that action, the Minister will know that the Government have no greater responsibility than to secure the safety of the country they serve and its people.

--- Later in debate ---

[Bob Stewart (Beckenham) (Con)]

I want to concentrate on what is essentially the core of this Bill—our national security. Today our country continues to face a broad-ranging hostile attack from foreign intelligence agencies. A few of our critical industries and technologies may already have been purchased, at least in part, by foreign investors, some of whom may not have a particularly benign approach to British national security.

This Bill comes not before time, considering that the Intelligence and Security Committee ruled on the matter and suggested changes in 2013. Unless the UK curbs the right of foreign firms and investors to obtain technologies through the means of mergers and acquisitions, and similar, our advanced technologies could easily find their way into the weapons systems of foreign and potentially hostile states. This would definitely harm the UK either directly or indirectly. The Bill gives the Secretary of State the power to screen investments that might just pose a national security risk, and that is what we are talking about today.

Obviously the Bill very much reflects the views of the ISC, of which most Members, apart from the Chairman, are present. [Interruption.] I didn’t use the word “you”, did I, Madam Deputy Speaker? [Interruption.] Oh good—you were looking at me with horror.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I only pointed out that I was once a member of the ISC as well.

[Bob Stewart]

I am always a culprit on the word “you”. I have now lost my place, thanks to your intervention, Madam Deputy Speaker!

The report produced by the ISC in 2013 contained a requirement for legislation, and we are now getting that legislation seven years later, which is rather a long delay. I am delighted that the Bill protects British industry and puts safeguards on it, but it puts particular safeguards on our national security. In future, investors will have no choice but to notify the Government if the ownership of certain businesses is to change hands—thank goodness for that. However, I note that the Secretary of State will also have the power to call in other businesses if he or she has concerns about national security. That is why I am slightly against a narrow definition of national security; I would prefer it to be a bit more fluid.

The decision to call in an investment will be based on three factors: the nature of the target of acquisition; the type and level of control being acquired and how that could be used in practice; and the extent to which the acquirer raises national security concerns. The list of sectors to be covered is under consultation. I will not use a mnemonic, which until today I thought was some sort of drill, but that list includes advanced robotics, artificial intelligence, cryptographic authentication, whatever that is, quantum technologies—I do know what that is—and satellite and space technologies, in which we are world leaders. It is very important that those sectors are guarded against being infiltrated, because that is what it is—infiltration to take away intellectual property.

At the moment, the UK is almost unique among major western economies in not having stand-alone foreign investment legislation, and this Bill will sort that out. It will give Ministers the power to look at transactions overall and to review them. The Government’s impact assessment estimates that it will result in well over 1,000 transactions a year—possibly up to 1,800, as some Members have suggested. That is a lot, and it means a lot of work for a specific department of BEIS. There will only be 100 people to do that work, which is slightly worrying.

I will finish, because I was told to be short—and I have been, in six minutes—and because I had your naughty finger pointed at me, Madam Deputy Speaker.

National Security and Investment Bill

Baroness Winterton of Doncaster Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Wednesday 20th January 2021 Commons Chamber

[Stewart Hosie (Dundee East) (SNP) [V]]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

New clause 2—Report on impact on Small to Medium Enterprises—

‘Not later than 18 months after the day on which this Act receives Royal Assent, the Secretary of State must lay before Parliament—

(a) a report setting out the impacts the Act has had on Small to Medium Enterprises and early-stage ventures, and

(b) guidance for Small to Medium Enterprises and early-stage ventures on complying with the provisions of this Act.’

This new clause would require the Government to produce a report setting out the impacts of this legislation on Small to Medium Enterprises and early-stage ventures, and to produce relevant guidance.

New clause 3—Grace period for Small and Medium Enterprises—

‘For the purposes of section 32, a person has a reasonable excuse if—

(a) the entity concerned is a Small to Medium Enterprise;

(b) this Act has been in force for less than six months.’

This new clause creates a grace period whereby – for alleged offences committed under Section 32 – Small to Medium Enterprises would have a ‘reasonable excuse’ if the alleged offence was committed within the first six months after the Bill’s passage.

New clause 4—Framework for understanding national security—

‘When assessing a risk to national security for the purposes of this Act, the Secretary of State must have regard to factors including, but not restricted to—

(a) the potential impact of the trigger event on the UK’s defence capabilities and interests;

(b) whether the trigger event risks enabling a hostile actor to—

(i) gain control or significant influence of a part of a critical supply chain, critical national infrastructure, or natural resource;

(ii) conduct espionage via or exert undue leverage over the target entity;

(iii) obtain access to sensitive sites or to corrupt processes or systems;

(c) the characteristics of the acquirer, including whether it is effectively directly or indirectly under the control, or subject to the direction, of a foreign government;

(d) whether the trigger event adversely impacts the UK’s capability and capacity to maintain security of supply or strategic capability in sectors critical to the UK’s economy or creates a situation of significant economic dependency;

(e) the potential impact of the trigger event on the transfer of sensitive data, technology or potentially sensitive intellectual property in strategically important sectors, outside of the UK;

(f) the potential impact of the trigger event on the UK’s international interests and obligations, including compliance with UK legislation on modern slavery and compliance with the UN Genocide Convention;

(g) the potential of the trigger event to involve or facilitate significant illicit or subversive activities, including terrorism, organised crime, money laundering and tax evasion; and

(h) whether the trigger event may adversely impact the safety and security of UK citizens or the UK.’

The new clause provides a non-exclusive framework of factors which the Secretary of State is obliged to have regard to when assessing a risk to national security.

New clause 5—National Security Definition—

‘When assessing a risk to national security for the purposes of this Act, the Secretary of State must have regard to factors including, but not restricted to—

(a) the potential impact of the trigger event on the UK’s defence capabilities and interests;

(b) whether the trigger event risks enabling a hostile actor to—

(i) gain control or significant influence of a critical supply chain, critical national infrastructure, or natural resource;

(ii) conduct espionage or exert undue leverage over the target entity;

(iii) obtain access to sensitive sites; or

(iv) to corrupt processes or systems.

(c) the characteristics of the acquirer, including whether it is effectively directly or indirectly under the control, or subject to the direction, of a foreign government;

(d) whether the trigger event adversely impacts the UK’s capability and capacity to maintain security of supply or strategic capability in sectors critical to the UK’s economy or creates a situation of significant economic dependency;

(e) the potential impact of the trigger event on the transfer of sensitive data, technology or potentially sensitive intellectual property in strategically important sectors, outside of the UK;

(f) the potential impact of the trigger event on the UK’s international interests and obligations, including compliance with UK legislation on modern slavery and compliance with the UN Genocide Convention;

(g) the potential of the trigger event to involve or facilitate significant illicit or subversive activities, including terrorism, organised crime, money laundering and tax evasion; and

(h) whether the trigger event may adversely impact the safety and security of UK citizens or the UK.’

This new clause establishes factors which the Secretary of State must have regard to when assessing a risk to national security.

New clause 6—Dedicated Small to Medium Enterprise support—

‘(1) Within 3 months of this Act receiving Royal Assent the Secretary of State must set up, a specific division focused on engagement with Small to Medium enterprises (SMEs) engaged in any provisions of this Act.

(2) The division must focus on four functions—

(a) providing updated, efficient and accessible guidance specific to SMEs on compliance with the terms of this Act;

(b) engaging with SMEs in advance of formal notification that can allow efficient notice and assessment periods, including through use of regulatory sandboxes where beneficial for innovation and national security;

(c) providing regular engagement with and assistance to SMEs throughout the assessment periods for SMEs;

(d) seeking to deliver prompt, proportionate resolution of complaints by SMEs relating to the provisions of this Bill;

(e) monitor the impact on access to investment for SMEs and report to the Secretary of State.’

This new clause would require the Secretary of State to set up a Small to Medium Enterprise (SME) engagement unit to assist and support SMEs through the national security screening process.

New clause 7—Reports to the Intelligence and Security Committee of Parliament—

‘(1) The Secretary of State must, in relation to each relevant period—

(a) prepare a report in accordance with this section, and

(b) provide a copy of it to the Intelligence and Security Committee of Parliament as soon as is practicable after the end of that period.

(2) Each report must provide, in respect of mandatory and voluntary notifications, call-in notices, and final orders made under this Act, details of—

(a) the jurisdiction of the acquirer and its incorporation;

(b) the number of state-owned entities and details of states of such entities;

(c) the nature of national security risks posed in transactions for which there were final orders;

(d) details of particular technological or sectoral expertise that were being targeted; and

(e) any other information the Secretary of State may deem instructive on the nature of national security threats uncovered through review undertaken under this Act.’

This new clause would require the Government to publish an ‘Annual Security Report’ to the Intelligence and Security Committee of Parliament.

Amendment 3, in clause 3, page 3, line 10, leave out subsection (4) and insert—

‘(4) The Secretary of State must review a statement published under this section within one year after the publication of the first such statement, and thereafter at least once every 5 years.’

This amendment would require the Secretary of State to review the statement about exercise of call-in power to be reviewed one year after they are made, and once every five years thereafter.

Amendment 1, in clause 6, page 5, line 3, at end insert—

‘(10) Notifiable acquisition regulations must be reviewed one year after they are made, and once every five years thereafter.’

This amendment would require notifiable acquisition regulations (including which sectors are covered) to be reviewed one year after they are made, and once every five years thereafter.

Amendment 6, page 5, line 3, at end insert—

‘(10) Notifiable acquisition regulations must bring broadcast, print and social media companies within the scope of the mandatory notification regime.’

Amendment 2, in clause 8, page 6, line 38, at end insert—

‘(8A) The fifth case is where a person becomes a major debt holder and therefore gains influence over the entity’s operation and policy decisions.

(8B) For the purposes of subsection (8A), a major debt holder is a person who holds at least 25% of the entity’s total debt.

(8C) The sixth case is where a person becomes a supplier to the entity of goods, services, infrastructure or resources to such an extent that the withholding of the supply would seriously undermine the entity’s ability to continue its operations.’

This amendment would mean that a person becoming a major debt holder or a major supplier would count as a person gaining control of a qualifying entity.

Amendment 4, in clause 30, page 20, line 3, after ‘period’ insert ‘or any calendar year’

This amendment would make it mandatory for the Government to inform Parliament if financial assistance given in any financial year, or in any calendar year, exceeds £100 million.

Amendment 5, in clause 54, page 33, line 42, at end insert—

‘(aa) whether the law of the country or territory to whose authority the disclosure would be made contains provisions and prohibit any use or disclosure of the information contrary to subsection (4),

(ab) whether the Secretary of State considers that disclosing the information to that authority would in itself pose a threat to national security, and’

This amendment would add to the list of factors the Secretary of State takes into consideration a sub-clause to ensure that a country or territory making a disclosure request has sufficient safeguarding in place to prevent any action that would be considered unlawful in the UK.

Amendment 7, in clause 61, page 36, line 20, at end insert—

‘(m) the average number of days taken to assess a trigger event called in under the Act;

(n) the average number of days taken for acceptance decisions in respect of mandatory and voluntary notices;

(o) the average staff resource allocated to the operation of reviews of notices made under sections 14 and 18 over the relevant period;

(p) the number and proportion of notices and call-in notices concerning the acquisition of a Small to Medium Enterprise; and

(q) in respect of the transactions stated subsection (p), the sectors of the economy in relation to which call-in notices were given.’

This amendment would require the Secretary of State to report on the time taken to process notices, the resource allocated to the new Unit and the extent to which Small to Medium Enterprises are being called-in under the new regime.

[Stewart Hosie]

The new clause is in my name and the names of my hon. Friends, as are new clauses 2 and 3 and amendments 1 to 6.

On Second Reading of this Bill, I described how it was designed to bring additional scrutiny of foreign investment that may have an impact on national security. I agreed that not only was there nothing wrong with having a national security eye on investments in critical areas, but it was in fact absolutely vital. During that debate, the House appeared to acknowledge the concern about the national security implication from investments that are shared globally and that a number of other countries had been tightening up their investment security regimes in response to changing national security-related threats to enabling technology, to intellectual property and so on. The debate also saw descriptions of the tightening of these regulations in Japan, Canada, Sweden, Germany and elsewhere. There was little disagreement on the Government’s proposals where, if the trigger and threshold were both met, an individual investment could be called in by the Secretary of State for approval, the powers could be retrospective, and an investment could be called in after it had occurred. There was some concern about the time to conduct the national security assessments—30 days with potentially an extra 45, which might actually be deemed a little short and it still prompts the question of whether 75 days was actually sufficient. There was, however, broad agreement about the mandatory notification process where investment interests in certain sectors and asset types must be pre-emptively or retrospectively declared. There were real concerns that this may lead to a very large number of notifications from businesses erring on the side of caution.

The Bill also introduced new powers to increase screening in respect of health and preventing hostile acquisition through strategic buying of health supplies, and I welcome that, with the warning that the scope of activities that may be caught is very wide. That is because the statement of policy intent, which describes the core areas as including such things as advanced technology, is perfectly reasonable, but it also contains a much wider definition of national infrastructure.

That debate did focus on the impact assessment for the Bill, which estimated that the new regime would result in somewhere between 1,000 and 1,800 transactions being notified each year—a very high number given that only 12 transactions were reviewed on national security grounds since the current regime was introduced 17 years ago. It does also remain the case that we still need to carefully assess the impact of the Bill—the impact that it will have on sectors and on infrastructure not just in the UK as a whole, but in the devolved nations and in the English regions. On Second Reading, I asked the Minister to take a little time to convince himself that there were no unintended consequences either for the UK or, indeed, for the Scottish Government’s inward investment plans when Government agencies of all sorts are actively seeking investment in some areas, which may be deemed to be critical national infrastructure. That is an issue that I do hope he will still address today. How do we ensure collectively that this Bill does not impede growth or investment in such areas.

The key concern I had was about implementation. The Bill is set to radically overhaul the UK’s approach to foreign investment at a time of significant economic uncertainty. On leaving the EU, the UK Government cannot afford to get their global Britain approach wrong and suffer what has been described as the potentially chilling effect on investment if the measures in the Bill appear to be heavy-handed. That is a concern across the board, given that even microbusinesses are in scope.

I take this brief opportunity to thank my hon. Friends the Members for Glenrothes (Peter Grant) and for Aberdeen South (Stephen Flynn), who served on the Bill Committee. They raised a large number of concerns, including the impact on academic research spin-offs, SMEs and early-stage ventures. They called for a grace period for SMEs falling foul of this new legislation, a review of exercisable call-ins and a review of the notifiable acquisition regulations. They suggested that broadcast, print and social media companies should be in scope. They suggested that major debt holders should be defined as a person gaining control of a qualifying asset and they suggested a requirement to report if financial compensation from Government exceeded £100 million in either a calendar or financial year.

All those amendments and contributions were made for very good reasons. The Scottish National party has long argued that it is right to have this legislation and for it to be made. In some ways it is long overdue, but that does not mean there are no concerns, which is why we have tabled new clauses 1 to 3 and amendments 1 to 6.

New clause 1 would require the Secretary of State to assess the impact of the Bill on academic research spin-off enterprises. New clause 2 would require the Government to produce a report setting out the impacts of the legislation on small and medium enterprises and on early-stage ventures and to produce relevant guidance. New clause 3 would create a grace period whereby for alleged offences committed under clause 32, SMEs would have a reasonable excuse if the alleged offence was committed within the first six months of the Bill being in operation.

I will turn briefly to the amendments. Amendment 1 would require notifiable acquisition regulations, including the sectors to be covered, to be reviewed one year after they are made and five years thereafter. Amendment 2 would mean that a person becoming a major debt holder or a major supplier would count as a person gaining control of a qualifying asset. Amendment 3 would require the Secretary of State to review statements about the exercise of call-in power one year after they are made, and once every five years thereafter. Amendment 4 would make it mandatory for the Government to inform Parliament if financial assistance given in any financial or calendar year exceeded £100 million. Amendment 5 would add to the list of factors the Secretary of State has to take into account. They would have to ensure that a country or territory making a disclosure request had sufficient safeguarding in place to prevent any action that would be considered unlawful in the UK. Amendment 6 would ensure that notifiable acquisition regulations bring broadcast, print and social media companies into the scope of the mandatory notification regime.

All those new clauses and amendments in essence are designed to ensure that the scope of the legislation is appropriate, but that the impact, particularly on investment, is proportionate. I have not determined yet whether to press any of them to a vote. What I would prefer is for the Minister to give a commitment, not simply to have infrequent if regular reviews of parts of this Bill, but to keep the Bill under permanent review to ensure that the scope remains valid—not too wide and not too narrow—and that the impact on investment and risk, particularly in small and medium-sized enterprises, academia and research, is proportionate. Through that, we can ensure that we quite rightly protect national security, but do not suffer from the investment chill that some fear could be the consequence if we get this wrong. With those brief remarks, I commend the new clauses and amendments to the House.

--- Later in debate ---

We have seen reports about so-called elite capture by foreign powers, we have seen the Russia report, and we would like far more assiduous action to be taken. It is naive to think that we are not vulnerable to these influences—

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Could I interrupt the hon. Gentleman to say that we have quite a few more speakers? We do have a fair amount of time, but I am hoping that speakers will take about 10 minutes, and he has now taken 15, so I hope that he might be bringing his remarks to a close before too long.

[Stephen Kinnock]

With apologies, Madam Deputy Speaker, I am indeed finishing now.

Protecting our national security is just one element of protecting, nurturing and developing the sectors that are vital for the future. Technology sovereignty will be the defining issue of the coming decade. The economic dislocation we have seen from covid means that the case for action is stronger and more urgent than ever.

National Security and Investment Bill

Baroness Winterton of Doncaster Excerpts

Consideration of Lords amendments
Monday 26th April 2021 Commons Chamber

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)]

I beg to move, That this House agrees with Lords amendment 1.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to consider:

Lords amendments 2 to 10.

Lords amendment 11, and Government motion to disagree.

Lords amendments 12 to 14.

Lords amendment 15, and Government motion to disagree.

[Paul Scully]

I am delighted that the Bill has returned to this House from the other place and I am delighted to be able to speak to it briefly today following the excellent handover from the Minister for Covid Vaccine Deployment, my hon. Friend the Member for Stratford-on-Avon (Nadhim Zahawi), who is successfully jabbing the nation as we speak. As we are at a late hour, I will not take up too much of the House’s time. I will just quickly summarise some of the changes to the Bill.

Lords amendments 1 to 10 and 12 to 14 were all tabled by my colleague in the other place, Lord Callanan. Lords amendments 1, 5, 8, 9 and 10 are what the Office of the Parliamentary Counsel would call minor and technical. Lords amendments 12, 13 and 14 pertain to the annual report as provided for by clause 61, and they reflect the decision to include additional reporting requirements that will provide further value for parliamentarians, businesses and investors. Lords amendments 2, 3, 4, 6 and 7 were made to the Bill in the spirit of a shared recognition that the requirements of the mandatory notification regime must be no more than necessary and proportionate for the protection of our national security, and that businesses and investments are not unduly burdened or stifled.

I wholeheartedly agree with the hon. Member for Newcastle upon Tyne Central (Chi Onwurah), who said on Report that we need

“robust powers to guard our national security and…change that backs our best small businesses and our capacity for innovation. Both of these goals are possible; indeed, they are mutually reinforcing.”—[Official Report, 20 January 2021; Vol. 687, c. 1000.]

That is why we have reflected carefully during the passage of the Bill on the 15% starting threshold for the mandatory regime. Lords amendment 2 removes acquisitions between 15% and 25% from constituting notifiable acquisitions under the mandatory regime. The House will recall, though, that the Bill provides the power for the Secretary of State to call in acquisitions of control across the economy. That power remains in place. Provisions in the Bill also ensure that the Secretary of State can amend the scope of the mandatory regime through secondary legislation, which could include the introduction of a 15% threshold if deemed appropriate, although we do not currently anticipate doing so.

I will turn to Amendments 11 and 15—

--- Later in debate ---

Committee to withdraw immediately; reason to be reported and communicated to the Lords.

[Madam Deputy Speaker (Dame Rosie Winterton)]

In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.