National Security Bill (First sitting)

Sally-Ann Hart Excerpts

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Holly Lynch]

Q You said in response to my hon. Friend the Member for Birmingham, Yardley that you had a point to make about part 1. I want to give you the opportunity to make that point.

Jonathan Hall: I am slightly uncertain and concerned about the scope of clause 3(2), the foreign intelligence services offence. On the face of it, an offence could be committed inadvertently, and it does appear to cover quite a lot of lawful conduct. The example that I have been debating with officials is the example of someone who sells miniature cameras, which is undoubtedly conduct of a kind that could assist a foreign intelligence service. My concern with clause 3(2) is that it does not seem to have a sufficient mental element, either that the individual who commits the offence is deliberately acting prejudicially to the UK interest, or knows or ought to suspect that there is some foreign intelligence service involvement, so I have a concern about that particular clause.

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

Q You mentioned that restrictions to legal aid could be counterproductive and could harm rehabilitation efforts. Can you please expand on that?

Jonathan Hall: Not all terrorists are cold, calculating, ruthless killers who will go and commit terrorist acts whatever their circumstances. They may exist, but there are also quite chaotic terrorist-risk offenders. I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.

My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made and a sense of injustice or grievance on behalf of the terrorist offender, who will perhaps say to themselves, “Why can’t I get legal aid when everyone else in my situation can?” My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.

[The Chair]

I am afraid that brings us to the end of the time allocated to the Committee to ask questions. On behalf of the Committee, I thank Mr Jonathan Hall QC for giving evidence in this session.

--- Later in debate ---

[Damian Hinds]

Q How do you see information operations working? How might foreign states seek to interfere in our democratic processes and public life?

Professor Sir David Omand: If you recall the statement made almost exactly two years ago in the House by Dominic Raab, he said that the Government had concluded that it was “almost certain” that “Russian actors” had “sought to interfere” in our election in 2019; and we had the evidence from the American elections and the French presidential election in 2017. All the techniques were deployed. I do not know whether any members of the Committee have been watching the TV series showing on Channel 4, which is as good a primer as any on how such techniques can be used to pervert our political discourse as well as actually harm individuals. This is the world we are in, these are the harms we face and I think that this Bill is a good start in helping the agencies to address some of those harms.

Sir Alex Younger: On this issue, you are right to focus on the possibility of interference in our democratic process and the potential unintended consequences of what we are talking about here. Of course, one person’s interference is another person’s legitimate intervention. Perish the thought that it should be the Government’s responsibility to say what is true and what is not. That is the difference between us and our opponents.

I can understand the scale of the problem; I have seen it. I had a long chat with the Government about this, and the thing that convinced me that this was an appropriate response was, first, the foreign powers condition—to be clear, that is about people acting on behalf of a foreign power—and, secondly, essentially the use of deception to achieve your aim. It seems to me that if someone is working on behalf of a foreign power, using deception, to distort our political process, we have a pretty clear basis for taking action. That, I think, is as it should be.

[Sally-Ann Hart]

Q I want to pick up on the foreign interference point in clause 13 of the Bill:

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

a negative “effect” on the UK for or on behalf of the foreign power in question. In other areas of law, in particular the criminal law, we have intent and recklessness. Do you think that clause 13 should be expanded to include recklessness?

Professor Sir David Omand: I looked at 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 as, 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.

[Sally-Ann Hart]

So you do not think that it should be included in clause 13?

Professor Sir David Omand: No, I had not concluded that.

[Sally-Ann Hart]

Sir Alex?

Sir Alex Younger: I do not have anything to add to that.

[Stewart Hosie]

Q I just want to press further on clause 23. You said that the absence of a carve-out to protect officers could have a chilling effect. Given that we have substantial data sharing, particularly with our closest partners, that the internal safeguards are very robust, and that there is already the defence of acting reasonably—you made the point that this would be on an order to do so—I am not clear yet why the carve-out in clause 23 is as necessary as you suggest it is.

Sir Alex Younger: First of all, “carve-out” means different things to different people, but there is a wild idea that this is a granting of immunity that means we can behave willy-nilly. You will know from your Committee experience that this is not true. I want to make that really clear. The reality at the end of all this—we have had the theoretical versus practical conversation already—is that there exists a risk that individual UK IC officers will face criminal sanction for doing their job. I do not think that risk should exist. That is fundamentally where I am. You can decide as politicians that it is better than what is being proposed by the Government, but I am saying that I do not think it is compatible with a healthy sharing regime of the sort that produces the security benefits I have outlined.

--- Later in debate ---

[The Chair]

I bring in Sally-Ann Hart.

[Sally-Ann Hart]

Q We heard from the previous witnesses about the challenges of online harm—sabotage and dis, mis and malinformation—and the Bill seeks to modernise the espionage regime to meet the challenge of the digital age. Do you think it will achieve that aim and where are the gaps, if any?

Paddy McGuinness: I would expect it to be a dynamic process. I think you will be looking at further legislation; let us hope you have a long life as an MP, but in your time as an MP I would expect you to have to look at this again.

To Sir David’s point, I do not think we should delay for a moment fixing the things that the Bill fixes because of the fact that technologies develop dynamically. There is a lag. I can remember—I think I was actually working at GCHQ at the time—us thinking about what was happening with Facebook as it emerged as a widely used platform. Here we are with the Online Safety Bill, about 13 years later. There is a natural and quite proper lag between rapid technology innovation and slow and considered regulation and legislation, and we are going to have to live with that. I think this is good. It provides a basis, and I think the extraterritoriality is particularly important, as is the way in which sabotage is broadly defined to allow you to deal with the kind of range of things that I have been talking about, given that the opponent will move through those spaces.

[Antony Higginbotham (Burnley) (Con)]

Q The other day the director-general of MI5 and the director of the FBI said that most of what is at risk by quantity is not what the state does, but the technology, research and development and commercial advantage developed by our businesses and academic institutions. Does the Bill do enough—I am thinking mainly about the offences part of it—to protect against that risk?

Paddy McGuinness: I think it does a very significant thing in the way in which it criminalises specifically the trade secrets aspect, which covers a very broad range. Again, we may have to return to this. This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.

It does not feel as though we have quite the same volume of opencast mining of our intellectual property and economic value that we had, as was described previously by General Keith Alexander, the head of the National Security Agency in the US. He described the enormous volume—trillions of value—taken out of our economies. There still is a very high level, though, so there is more work to do on this, and it is a significant challenge to the corporate sector to do the right thing in this space, because of the difficulty that it represents. The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.