National Security Bill

Stuart C McDonald Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to follow the right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee. I am grateful to the Home Secretary for setting out the detailed context of this Bill and to the Minister for Security and Borders and his team for providing a briefing before the recess and talking through parts of the Bill and answering questions on it.

I think everybody here today agrees that we need a Bill that, as the long title to this one says, makes provision

“about threats to national security from espionage, sabotage and persons acting for foreign powers”.

Indeed, as we have already heard at some considerable length, the need to update our espionage laws is clear from the Russia report, from the Law Commission report and for a million other reasons as well. For those reasons, we will support the Bill’s receiving a Second Reading this evening. Indeed, parts of the Bill could be particularly welcome, such as steps to tackle disinformation and interference in elections; those have great potential if done correctly.

However, all that does not mean that we will give the Government a blank cheque as they take the Bill through its different stages, and we would be failing in our duties as Opposition MPs if we did. That is particularly true in a policy area such as this: there is perhaps a tendency for Government, and even Parliaments, to write blank cheques for the security and intelligence services every time they come calling with a list of new powers and capabilities that they seek.

Like everybody here, for the reasons that the Secretary of State and the shadow Secretary of State set out, I am immensely grateful for the critical work that those in the services do, day in, day out, on our behalf. They have our full respect. None the less, they are not perfect: from time to time, news stories emerge that remind us of that fact—for example, the recent BBC revelations about a particular covert human intelligence source. These agencies also have immense powers, so we should always rigorously test the need for new powers, new criminal laws and new restrictions, and we should always be on the lookout, as the shadow Home Secretary said, for ways and means that ensure that the agencies are held to account and that we get to look under the bonnet at what is going on without undermining their work or making it impossible. It is against that background that I will briefly highlight some of the issues that we will want to pursue and to test the Government on as the Bill progresses through the House.

In relation to part 1, most of the new offences seem at first sight to make sense and can be justified, though we will test whether they are a fair and proportionate response to the Russia report and the Law Commission recommendations in particular. These are complicated offences, so we will challenge the Bill to see whether the Government have gone far enough, or—more likely—whether they have gone too far. Key concepts will need close scrutiny. The foreign power condition and the foreign power threat activity definition, for example, are pivotal concepts that are also potentially very broad. The whole concept of the safety or interest of the UK could also be challenging and something of a moving feast as well.

As we have heard, clause 23 will need great scrutiny. It disapplies certain extra territorial provisions in relation to offences of encouraging or assisting crime under the Serious Crime Act 2007. The explanatory notes claim that the new paragraph that could be inserted into that Act

“ensures that those working for or on behalf of the intelligence agencies would not be liable for support they provided to activities overseas…where that support was deemed necessary for the exercise of the intelligence agencies’ functions.”

That all sounds benign, but others have made the argument that the provisions, as drafted, go way beyond what is described in those notes. For example, I hope we would all agree that, if Ministers take steps that lead to an unlawful drone killing of a family overseas, or if information is provided that leads to extraordinary rendition and torture, those Ministers should not be able to put themselves completely beyond the rule of law in those circumstances. That is exactly the type of behaviour for which we have been condemning other Governments, so if that is the impact of clause 23 there is a strong case for it to be rethought.

[Stewart Hosie]

On that particular point, is it not more perplexing that there is the carve-out of removing the ability to be convicted for certain overseas offences, given that the defence of acting reasonably already exists?

[Stuart C. McDonald]

My hon. Friend makes an important point, which we will have to look at. There are other provisions in legislation that provide protection for those involved in the work of agencies, so we do not think that the case for this new carve-out has been made at all.

Part 2 will also need close scrutiny; we turn here to state threats prevention and investigation measures. I do not think that any of us here should ever feel comfortable about curtailing people’s liberties by ministerial fiat rather than as a punishment for a proven crime. In fairness, I think the Home Secretary recognised that in her speech. We have come to accept that such “prevention and investigation measures” are a necessary part of the fight against terrorism. Our position on TPIMs has been to cut their wings, improve oversight and limit their invasiveness, rather than to do away with them altogether. It may be that we end up with STPIMs as well, but we will probe the Minister closely on the case for requiring them at all.

Ministers always promise—the Home Secretary did today—that powers will not be used inappropriately and excessively. That is welcome, but they should not have the power to do things that are inappropriate or excessive in the first place, because those who follow them into office may take a different view of what is inappropriate or excessive. Restrictions have to be in the Bill rather than in ministerial undertakings.

Part 3 is also a mixed bag. We absolutely see the need for freezing and forfeiting damages that could be utilised for terrorism. There could also be an arguable case for powers to reduce damages in certain national security proceedings, but we will examine that closely. On the other hand, there is a real question over whether courts already have sufficient powers and whether there are sufficient safeguards and processes that prevent undeserving cases from winning damages in the first place, so we will again press the Minister on that.

Much less persuasive is the case for restricting legal aid in utterly unconnected proceedings on the grounds of a past conviction for terrorism. That was raised by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and I am very sympathetic to that while recognising that this is one of the few “England and Wales only” provisions.

As we heard, we need to scrutinise not just what is in the Bill, but what is not—or not yet—in it, and two issues are particularly important. As has been touched on, the Minister and the Home Secretary have set out that the foreign agent registration scheme will be amended. Various complaints have been made about that not being in the Bill as we debate it today.

I return to my experience during the passage of the Nationality and Borders Act 2022—a slightly more acrimonious piece of legislation. Having really important provisions about citizenship and age tests being introduced at pretty short notice in Committee meant that we did not have the chance to ask witnesses about them or to get briefings about them from important organisations.

Something as important as the foreign agent registration scheme needs more than a couple of days before a Committee sitting if we are going to give it proper scrutiny. I am very sympathetic to the idea of allowing us some time on the Floor of the House to debate the details. In principle, the idea is very welcome and the provision is required. However, as we all have acknowledged so far, there will be very tricky lines to draw in the sand between those who should be required to register and those who do not. We must also guard against having a massive Henry VIII clause that simply leaves it to the Government to set out the scheme at a later date. That would not be acceptable either.

Also missing from the Bill—this is apparently not going to be amended by the Government—are updates to the Official Secrets Act 1989 or any concept of a public interest defence to charges under it. As we heard, that Act is almost as out of date as the other laws that we are updating through the Bill. The Law Commission was clear that a public interest defence was required to ensure that the Government were not able to abuse legislation as a

“cloak to mask serious wrongdoing”.

It suggested a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under that Act. We support those ideas on the type of provisions that look under the bonnet, as I referred to earlier.

[Joanna Cherry]

As usual, my hon. Friend is giving a considered speech and I support everything that he has said so far. Notwithstanding the Government’s reluctance to use the Bill as a vehicle to introduce a public interest defence, it is likely that a cross-party amendment would seek to do that at some point. Will he confirm that the Scottish National party—our party—would support that?

[Stuart C. McDonald]

Yes, absolutely. The versions of such an amendment that I have seen look very promising and we would like to give our support to that if we can.

In conclusion, we need a Bill, and we certainly support this Bill on Second Reading. However, there is a lot for us to get our teeth into, both in terms of what is in it and what is not. We look forward to engaging critically but constructively on all these issues as the Bill progresses.

National Security Bill (Third sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[The Chair]

I welcome the Committee to the line-by-line consideration of the Bill. Let us first have a few moments of parish notices. Many people here are old hands at this business, but some are not. Members will therefore forgive me if I talk them through the way in which the Committee ought to consider the Bill, from the beginning—forgive me if I am telling you things that you already know.

The Bill before you is the Bill as agreed, without Division, on Second Reading. The purpose of the Committee is to consider the Bill in detail and seek to improve it. That is done by any member of the Committee tabling amendments. Most often, amendments are tabled by Her Majesty’s loyal Opposition, although anybody can do so. On this occasion, there is also a large number—perhaps larger than usual—of Government amendments. We talk through the amendments.

Amendments are grouped on the selection list before you and are linked together by subject. If there are amendments across the field on a similar subject, they are debated together in one group. Amendments are then voted on not at that time, but when we get to the relevant part of the Bill; amendments are debated together, but often we will vote on them two or three days later, as we come to them. That removes the confusion on that part. The Member who tabled the lead amendment in a group starts the debate. Others may then catch my eye. Members may speak as often as they like on each amendment, although we might seek to avoid overdoing it.

Behaviour, as it were, is identical here as to that in the main Chamber. Things such as eating and drinking are not allowed, and—to begin with, at least—gentlemen are wearing their coats. I am a very old-fashioned traditionalist and tend to start that way. However, if somebody at some stage wanted to make a point of order, I might be persuaded to change that particular rule—for the first time in my 25 years as a Chairman, mark you, but these are extreme conditions. I am sure that the Doorkeeper will kindly ensure that everyone has plenty of water, as we need to be aware of the heat today.

Clause 1

Obtaining or disclosing protected information

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 46, in clause 1, page 1, line 10, leave out “prejudicial” and insert “damaging”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

[The Chair]

With this it will be convenient to consider the following:

Amendment 47, in clause 1, page 1, line 10, after “safety or” insert “critical”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

Amendment 48, in clause 27, page 21, line 4, at end insert

““critical interests” includes security and intelligence, defence, international relations and law and order”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

Clause stand part.

[Stuart C. McDonald]

It is a pleasure to serve under your chairmanship, Mr Gray. I welcome the new Minister to his place and wish him all the best in his new role. I certainly foresee this experience as being thrown in at the deep end, but it is a Bill on which there is broad consensus, so I hope that it is not too much of a baptism of fire and that he enjoys it.

It is nice to be able to join colleagues. I was sorry to miss the evidence session last Thursday, as I was indisposed, but I have read the transcript, and the session seemed to prove incredibly useful. I therefore did not miss the usual experience I have at around this time of a Bill Committee, when I think, “If only I had been able to hear or read that evidence before drafting my amendments, they might have been slightly different.”

Let me reiterate our position: the vast majority of provisions in the Bill are welcome and probably long overdue. Clause 1, like clause 4, implements part of the Law Commission’s review recommendations. The clauses are broadly welcome and should stand part of the Bill. Our amendments to clause 1, like most of the handful of other amendments we have tabled, are simply designed to probe whether the offences are drawn tightly enough. The crimes that we are talking about are serious—the offence in clause 1 can lead to life imprisonment. I do not think that anybody on the Committee would say that that is not appropriate when a person steals or hacks protected security information at the behest of a foreign Government and puts the lives of UK citizens at risk.

The amendments are simply designed to ask whether the offence might catch conduct that it was not intended to catch, particularly behaviour that might embarrass the Government but is not in any genuine sense prejudicial to our safety. The shadow Minister put that question to the Law Commission witnesses last Thursday. Professor Lewis responded that such questions are probably legitimate in relation to the Official Secrets Act 1989 and leaks, but the offence is different in this case because of the requirement to be acting for a foreign power. She said succinctly:

I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 52, Q98.]

On the whole, I absolutely accept that point, and I fleetingly considered withdrawing some of the amendments, but there are questions about whether that distinction is 100% correct. There are legitimate concerns—they were raised on Second Reading and in the written briefings provided to MPs in advance of it—that the clause also catches behaviour that is more akin to a disclosure under the 1989 Act.

Article 19 and the Campaign For Freedom of Information argue that some of the broad concepts used in clause 1 combine in a way that puts civil society organisations and journalists at risk. I am grateful to those groups for their Second Reading briefings, which have largely prompted my remarks this morning. They point to several features of the clause that cause difficulty. First, it covers material that does not bear a security classification, and information is in scope even if it is not restricted but the person receiving it reasonably believes that it should have been.

Secondly, the concept of “safety or interests of the United Kingdom” is essentially determined by the Government of the day, so it is a policy of the state and, potentially, a broad concept. Thirdly, as well as not being confined to hostile states, the foreign power condition appears to be met simply by obtaining funding from a friendly Government who are pursuing perfectly reasonable aims.

That combination of factors gives rise to concerns for NGOs and journalists. I will give some hypothetical examples of each, which I have borrowed from Article 19. Let us say that an NGO in the UK has some general overseas funding from a friendly Government to campaign on climate change. The Government of the day decide that fracking or new coal are essential for UK interests—who knows where we might be in a few months’ time? The NGO is provided with leaked information undermining that policy—perhaps about the safety record of the company being lined up to operate the plan—and publishes it. Has the NGO involved committed a criminal offence? The way the clause is worded suggest that it might have.

The right hon. Member for Haltemprice and Howden (Mr Davis) made the point that lots of excellent organisations receive funding from overseas foreign powers, as they are currently defined. In fact, a list would include ActionAid, Anti-Slavery International, Article 19, Client Earth, Global Witness, Index on Censorship, Media Defence, the Organised Crime and Corruption Reporting Project, Privacy International, Reprieve—from which we heard evidence last week—and Transparency International. The funders of those NGOs include organisations such as the Danish International Development Agency, IrishAid, New Zealand’s Ministry of Foreign Affairs and Trade, the US State Department’s Bureau of Democracy, Human Rights and Labour, and the US State Department’s Office to Monitor and Combat Trafficking in Persons—there are many more in that vein. That is why we have concerns about the effect of clause 1 on NGOs.

In contrast, if a different NGO—one just across the road—had published that document online, it would not be committing an offence, not just because it does not receive any such foreign funding, but because the 1989 Act is more specifically about the subject matter or material that leads to an offence of disclosure—namely, it would have to relate to security and intelligence, defence, international relations and law enforcement. Environment or energy policy—or fracking, in my example—would not be covered. The punishment under the 1989 Act would be two years’ imprisonment, not life, so there is real inconsistency between the disclosures caught by the Bill and those caught by that Act.

My second example relates to journalism. What happens if, rather than directly publishing the leak, the NGO passes it to a journalist who reports the leaked information as part of their story? If that journalist is employed by a UK news organisation, all is well, because the foreign power conditions are not met. However, if the journalist works for another Government state broadcaster—even a friendly one—the foreign power condition is adequately met. One reporter commits no offence at all; another reporter—who perhaps works for Danmarks Radio or any other state broadcaster—commits an offence that could mean life imprisonment.

Our amendments offer different ways of addressing that. Amendment 46 would reintroduce the test of damage. Interestingly, the Law Commission’s proposals for reform of the 1989 Act recognise that damage can sometimes act as a public interest test, and that it is a concept worth keeping in relation to offences that could be committed by journalists or citizens generally, even if the Law Commission was arguing for removing it in relation to other disclosure offences.

Our amendments would also clarify what interests are protected by that serious offence, and would match the clause up with what is protected by the 1989 Act. Amendment 48 mentions simply “critical” interests—meaning security, intelligence, defence, international relations and law and order.

There is another alternative that I will come to later, which relates to fixing the foreign power clause so that NGOs are not caught if they get funding from benign foreign powers for perfectly reasonable purposes. Those are different alternatives, and I would be interested to know whether the Government accept that those two scenarios are caught by the clause. If so, what is their response?

[The Minister for Security (Stephen McPartland)]

It is a pleasure to serve under your chairmanship, Mr Gray, and to be here in Committee. I will start with the clause and then deal with the amendments tabled by—let me see if I can get this right—the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.

[Stuart C. McDonald]

Very good.

[Stephen McPartland]

Thank you.

I will quickly respond to some of the hon. Gentleman’s points. There are a variety of protections throughout the Bill. One is that someone has to be doing activity designed to benefit or help a foreign power in order to commit an offence. Secondly, most of the offences in part 1 of the Bill need sign-off from the Attorney General. Thirdly, the Crown Prosecution Service has to be satisfied that prosecuting is in the public interest. Those are three very large protections that exist throughout the Bill. As we go through the Bill clause by clause, we must always remember those three big principles.

I will start by referring to the recent case of the individual working in the British embassy in Berlin who was extradited and charged, and to the conviction of a Ministry of Defence contractor in 2020 under the existing espionage legislation, which indicate the threat that is posed by those looking to harm the United Kingdom by committing espionage. Clauses 1 to 3 create four separate but overlapping offences to ensure that the Bill proportionately covers the wide range of threats and harms that constitute espionage, without capturing legitimate activity. The clauses are supported by other provisions in the Bill, including the “prohibited places” provisions, by building on and modernising our existing tools in the Official Secrets Acts 1911, 1920 and 1939. The new provisions continue to criminalise harmful activity while reducing the risk of loopholes that can be exploited by sophisticated state actors. I will speak later to clauses 2 and 3, and to the “prohibited places” regime.

Before I get into the detail of the offence set out in clause 1, 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. This is provided for by the foreign power condition, which we will discuss in more detail later. In essence, a person’s conduct must be carried out for, on behalf of, or with the intention to benefit a foreign power. This responds to the recommendation, made by the Law Commission in its 2020 “Protection of Official Data” report, to move away from outdated concepts.

[Stuart C. McDonald]

The foreign power condition includes activities carried out with the financial or other assistance of a foreign power. The concern is that if an NGO gets regular funding for environmental or human rights work, it would be accidently caught by the foreign power condition. A journalist who works for a friendly state broadcaster would also be caught by the foreign power condition. We still think that such scenarios are a concern.

[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.

--- Later in debate ---

[Stuart C. McDonald]

Just go with Cumbernauld, if that helps.

[Ben Everitt]

Okay, we will just go with Cumbernauld. The hypothetical example referred to a Government of the day diversifying their energy sources so that, potentially, they were less reliant on fuel and power from a possibly hostile foreign state. The Minister has detailed the extra layers of defence that will act in the public interest. Does he agree that in the hypothetical example cited we would want some protection from foreign interference in Government policy—a democratically elected Government of the UK?

--- Later in debate ---

[Stephen McPartland]

It is a pleasure to follow the hon. Lady and I thank her for her kind words. She asked a number of questions, which I will do my utmost to answer.

Protected information is information, documents or other articles to which, for the purpose of protecting UK safety or interests, access is restricted, or it is reasonable to expect that access would be restricted. The hon. Lady’s example of taking a photograph inside the House of Commons would not be considered that. Throughout the Bill there are three tests. First, would the activity assist a foreign power? Secondly, would the Attorney General give consent? Thirdly, would the Crown Prosecution Service consider it to be in the public interest to prosecute? Taking a photograph inside the House of Commons or of something a bit more restricted than the Home Office lunch menu would not come under the provision.

The hon. Lady referred to the director general of MI5; this is about giving the Home Office, the intelligence services and the intelligence community the tools they need to tackle the wider threat. The British public trust the UK intelligence community to do the job and to have the powers. People often worry when other agencies get wider powers, but that is not what is happening in the Bill.

On being able to intervene at an earlier stage, the provisions in the Bill provide a toolkit to allow the intelligence community to intervene earlier in some matters in order to work with people to stop them progressing into specific acts that would break the law. It will help people who may be going down the wrong path, as well as helping the intelligence community to act at a much earlier stage.

[Stuart C. McDonald]

I am grateful to everyone who has taken part in the debate and to the Minister for his response. As I say, I absolutely accept the case for a clause such as this one. However, the Minister’s explanation of the protections in place in respect of the two scenarios that I outlined falls a long way short of what I would regard as satisfactory.

I outlined three solutions or protections. One was the foreign power condition; I have explained already why both the NGO and the journalist in those scenarios would meet the foreign power condition, so that does not work. Thereafter, we are left with the Attorney General and the Crown Prosecution Service. That offers no protection at all. From the point of view of the rule of law, people need to know whether they have broken the law or are committing an offence that is punishable by life imprisonment. We cannot leave that journalist or NGO in that position by saying it all depends on what the Attorney General or the Crown Prosecution Service thinks.

I have no idea whether the Attorney General or the Crown Prosecution Service would regard that NGO and journalist as having committed an offence that they would want to prosecute. As Members have said, that leaves a big chilling effect on that NGO and journalist. They have no certainty that they will not be prosecuted for the activities they undertake. They open themselves up to the possibility of life imprisonment for what, on the face of it, has all the characteristics of a disclosure of information, which should be dealt with, if at all, under the Official Secrets Act 1989 rather than in this Bill.

[Mr Jones]

I have been told that this may be outside the scope of the Bill, but it seems to me that what is missing from it is a public interest defence for those individuals. That protection not being in the Bill opens people up to what the hon. Gentleman describes.

[Stuart C. McDonald]

That is a fair point. In the light of the lack of satisfactory safeguards we have heard this morning, we may have to revisit that question. There is an issue of scope in relation to sticking that into the 1989 Act, but I do not see any reason why we could not include it in some of the offences in this Bill. Unless the Government can come up with better safeguards than have been offered this morning, we are going to have to revisit that.

I urge the Minister to go away and think about this issue. I am actually more worried about those two scenarios now than I was at the start of the day. I am not absolutely sure that the amendments that I tabled are the right ones, so we will revisit the issue on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

Obtaining or disclosing trade secrets

Question proposed, That the clause stand part of the Bill.

[Stephen McPartland]

Clause 2 provides for an offence of obtaining or disclosing trade secrets. It will be an important tool for law enforcement and the intelligence agencies to detect, deter and protect modern espionage activity. It will introduce an offence to criminalise the illicit acquisition, retention or disclosure of sensitive information with a commercial, industrial or economic value linked to its secrecy for, on behalf of or to benefit foreign states.

There is an inherent link between economic prosperity and our national security; we cannot ignore one and expect the other not to suffer as a result. We must respond to the fact that our adversaries and competitors are already acting in a more consolidated way, taking a whole-state approach to state threat activity. It is crucial that we ensure our legislation covers the wide range of threats and harms that constitute modern espionage.

For the purposes of this legislation, a person commits an offence if they obtain, copy, record, retain, disclose or provide access to a trade secret; additionally, the person’s conduct must be unauthorised and they must know or ought reasonably to know that their conduct is unauthorised. As with clause 1 and a number of other provisions in the Bill, there must also be a link to a foreign power, such as an intention to benefit that power or to direct tasking by that power.

The clause provides for a maximum penalty of 14 years’ imprisonment or a fine, or both. That reflects the severity of the conduct and the potential damage to the UK, its businesses and our economy, as well as being comparable to existing similar legislation.

--- Later in debate ---

Technological developments have enabled espionage and information acquisition to be conducted from a foreign state with greater ease. United Kingdom business interests are often targeted. Implementing an offence with extraterritorial jurisdictions is necessary to defend the United Kingdom against threats posed by foreign powers. The clause applies overseas where the conduct takes place wholly outside the UK, but only where the trade secret is in the possession or control of a UK person.

[Stuart C. McDonald]

That is one of a couple of issues that I have. I would like the full information on why the offence can take place only outside the United Kingdom if it is in respect of possession by a United Kingdom national, as opposed to a UK resident or any other description of persons. I do not know whether the Minister can answer that now, but it would be useful to understand it.

[Stephen McPartland]

I will come back to the hon. Member on that point.

The clause applies overseas where the conduct takes place outside the UK. That includes both a UK national overseas and a UK company based overseas, provided that it is incorporated or was formed, if unincorporated, under domestic law. The clause brings forward an important offence that will form part of a modernised toolkit for our world-class intelligence agencies and law enforcement. It is proportionate to the threat posed by this activity, and imposes no restrictions or obligations on UK businesses, but offers further protections for them, and the UK as a whole, against modern espionage activity. We cannot promote economic prosperity without enhancing our national security and responding to the modern threat posed by espionage.

--- Later in debate ---

[The Chair]

I will not be taking my jacket off, but hon. Gentlemen and hon. Ladies may take their jackets off if they wish, as it is very hot.

[Stuart C. McDonald]

I have three short points building on what Members have already raised in relation to this clause.

First, as raised by esteemed colleagues from the Intelligence and Security Committee, there is a question mark over what happens if somebody recklessly starts dishing out trade secrets, not directly to somebody in way that meets the foreign power condition but in a way that makes that inevitable or very likely. That does not seem to be caught by the clause at the moment, so that is something for the Minister to think about.

Secondly, as I have already asked, I want to understand why the offence is only committed “wholly” abroad if the trade secret is in the possession of a UK national, not, for example, a UK resident who is not a national. The Government have made a conscious choice about that drafting and I am interested to know why.

Finally, the clause states that the offence is committed if

“the person’s conduct is unauthorised”.

Do we need to be a little more explicit about what we mean by authorisation and authorised by whom? I can imagine situations where, for example, the person who we want to prosecute might say, “Actually, my conduct is authorised. It is authorised by the laws of my country,” which may be considerably different from the laws of this country. Does that need to be clarified? That might be implied in the phrase

“the person’s conduct is unauthorised”

but it may be something the Government want to look at.

[Stephen McPartland]

Earlier, we talked about sentencing guidelines. My understanding is that we are not in a position to give more detail on that yet. That is something I have discussed with the Ministry of Justice, as we will come to later.

With regard to the offence, one issue we have is the offence is designed to catch overseas activity with a strong link to the UK. It has been set at the threshold of a UK offence, so if we extend who it will to apply to, that will end up extending the scope of the offence. It is almost as if we have tried to put a safeguard in place to protect and control it, and the more we extend it, the more it will extend the scope of the offence and bring more and more within its scope, so that is the position we are in.

--- Later in debate ---

[Stephen McPartland]

I have nothing further to add.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Assisting a foreign intelligence service

[Stuart C. McDonald]

I beg to move, amendment 49, in clause 3, page 3, line 30, leave out paragraphs (a) and (b) and insert

“activities which are prejudicial to the safety or interests of the United Kingdom.”

[The Chair]

With this it will be convenient to consider the following:

Government amendments 1 to 4.

Clause stand part.

[Stuart C. McDonald]

On the face of it, the offence of assisting a foreign intelligence service in the UK or, in the case of UK persons, anywhere else is long overdue. Under the Bill, the offence is rightly a serious one and is capable of seeing a person in prison for 14 years.

We have tabled the amendment to push the Government on whether they have got the scope of the offence right, to ensure that we do not catch people who were not intended to be caught. In particular, is there not a danger that, as drafted, the offence punishes behaviour that might actually be consistent with, or even positively beneficial to, UK interests? That may come about because, as the Minister explained, we no longer have the concept of enemy services and also because of the very limited scope of the prejudice test.

What does “assisting” mean? It means assisting a foreign intelligence service in carrying out “UK-related activities”. Where those activities are outside the UK, it is only an offence to assist that service as a UK person if those activities are

“prejudicial to the safety or interests of the United Kingdom”.

However, where those activities are in the UK, there is no need for those activities to be prejudicial at all—any conduct which assists those activities is very likely criminal. I can well understand that a clear ban on assisting any conduct that supports Foreign Intelligence Service activities is attractive, but I will give another hypothetical example, which is much more dangerous than my earlier one, because it does not come from any briefing—I have had to make it up myself, so let us see how it goes.

What if the Estonian intelligence services, for example, believe that a member of their embassy staff in London is providing information to the Russians? They ask an Estonian student who lives in the same apartment block as that staff member to allow access to her apartment to undertake eavesdropping, or they ask her to undertake some monitoring, such as noting times of arrival or departure. That activity by the Estonian intelligence services, or by that student on their behalf, seems positively consistent with UK interests, but as drafted, it would amount to a serious criminal offence under clause 3.

The clause is so widely drafted that I worry that lots of people involved in setting up and facilitating a future meeting between the head of MI6 and the CIA might be in danger of committing an offence, whether they pick him up at the airport, provide him with a hotel room or serve him breakfast. I very much look forward to being reassured that that is not the case.

The amendment would ensure that, as with activities outside the UK, conduct here would have to be intended to support activities adverse to UK interests, or to be such that a person ought reasonably to know that it would possibly assist activities adverse to UK interests. There might be different ways of fixing this potential problem—perhaps a different hurdle can be used to assess “in the UK” activities, such as “inconsistent with UK interests.”

On the Government’s amendments, why do the Government intend to turn the relevant provision into a defence, which then puts the burden on the person accused? The explanatory notes talk of clarifying that it is a defence, but that seems a very deliberate change of mind by the Government, especially if one reads the explanatory notes, which say that clause 3(7)

“sets out exceptions to the offence to ensure that legitimate conduct that is within the UK’s interests is not caught withing the offence.”

That is what the explanatory notes say about the original drafting of the Bill, so it is not clear why the Government have had a change of heart, and I look forward to hearing the Minister’s explanation.

--- Later in debate ---

[Stephen McPartland]

That was a range of great examples, and I will do my best to address them. The whole purpose of the clause is to provide our world-class intelligence agencies and law enforcement with the tools to respond appropriately to activity conducted in and against the UK by foreign intelligence services that wish to cause us harm. Although the Government understand and appreciate the intention behind the amendment, we propose to reject it.

The distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, clause 3(4) requires the conduct to be

“prejudicial to the safety or interests of the United Kingdom.”

That is to ensure that we target the most harmful activity overseas that has an appropriate link to the UK. For activity taking place inside the UK, there is currently no requirement for the activity to be prejudicial to the safety or interests of the UK. However, taking into account the defence in clause 3(7), foreign intelligence service activity carried out in the UK without even informal agreement or assent is inherently prejudicial to the UK’s safety or interests. Having to prove beyond a reasonable doubt why that activity is prejudicial risks creating a high evidential threshold that could, as we try to meet it, potentially compound the damage caused.

Clause 3(4)(a) has been drafted to ensure that the offence can prevent a wide range of activities from occurring and prevent threats from developing. Any legitimate activity would be covered by the three elements of the defence in clause 3(7), so there are appropriate safeguards in place. If a foreign intelligence service carried out activity in the UK and its conduct did not fall under clause 3(7), we must be able to call it out for what it is and prevent further harm from being caused. The current construction of clause 3(4) allow us to do exactly that, and the amendment risks reducing the operational utility of the clause as a whole.

We cannot allow the UK to become a hotbed for foreign intelligence services running covert and deceptive operations. I understand the examples that have been given, and I am looking into some of them, but the reality is that we need to be in a position to protect the intelligence services and give them an opportunity to go out there and deal with these people and the threats we face. As I have said, we have three protections throughout the whole Bill. We are coming up with lots of examples, but by answering each of them specifically, we will just provide our enemies and state threats with ways to work around the offence.

[Stuart C. McDonald]

I am grateful to the Minister for his response, but it is important to work through hypothetical examples so that we can understand the scope of the Bill. I absolutely get his explanation as to why there is a distinction between activity inside and outside the UK, and he briefly mentioned the idea of a friendly foreign intelligence service—in my example, the Estonian intelligence service—having permission to engage in the activities that I described. That may well be the solution. I will take away what the Minister has said. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stephen McPartland]

I beg to move Government amendment 1, in clause 3, page 4, leave out line 1 and insert—

“In proceedings for an offence under this section it is a defence to show that the person engaged”.

--- Later in debate ---

[Holly Lynch]

I have the Minister’s explanation. We considered the implications of Government amendments 1 to 4 earlier, and on that basis we are satisfied.

Amendment 1 agreed to.

Amendments made: 2, in clause 3, page 4, line 8, leave out “is” and insert “was”.

This amendment is consequential on Amendment 1.

Amendment 3, in clause 3, page 4, line 10, leave out “is” and insert “was”.

This amendment is consequential on Amendment 1.

Amendment 4, in clause 3, page 4, line 10, at end insert—

“(7A) A person is taken to have shown a matter mentioned in subsection (7) if—

(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.” —(Stephen McPartland.)

This amendment provides that a defendant bears an evidential burden in relation to the defence in clause 3(7).

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4

Entering etc a prohibited place for a purpose prejudicial to the UK

[Stuart C. McDonald]

I beg to move amendment 50, in clause 4, page 5, line 9, at end insert—

“(7) No offence is committed under subsection (1) if the conduct is for the purposes of protest unless the conduct is prejudicial to the safety of the United Kingdom.”

This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this section.

[The Chair]

With this it will be convenient to consider the following:

Clause stand part.

Clause 5 stand part.

[Stuart C. McDonald]

It is obvious what the amendment is getting at: it is about protest rights, which were raised by my right hon. Friend the Member for Dundee East, who unfortunately cannot be with us today.

We all broadly see what the Government are trying to achieve. Clause 4 builds on the Law Commission recommendations. It protects prohibited places against entry etc. for purposes prejudicial to the UK. Clause 5 criminalises entry etc. where there is no purpose prejudicial but where there is actual unauthorised entry. I will come back to why that is necessary.

However, as before, given that a person can receive a hefty 14-year penalty if they are found guilty of an offence under clause 4, we want to be clear about whether it has been drafted tightly enough. As with clause 1, issues are created by the breadth of some of the concepts, such as the safety or interests of the UK. Crucially, if a person even approaches or is in the vicinity of a prohibited place, they are at risk of committing this very grave offence if they have a purpose that they ought to know is prejudicial to the safety or interests of the UK. We must bear in mind that clause 8 allows for additional sites to become prohibited, not necessarily for the safety of the UK but to protect its nebulous interests. Again, there is that very broad concept.

In Chandler v. Director of Public Prosecutions, the plan of the folk being prosecuted was to enter a prohibited RAF station and prevent access to others, thus preventing aircraft from taking off. Unsurprisingly, it was held that, objectively, it was access for purposes prejudicial, even if the protesters themselves believed it to be in the interests of the state to get rid of nuclear weapons. It was decided that the interests of the state are not for the jury to decide on, but for the Government of the day.

Of course, many more protesters will approach or be in the vicinity of a prohibited place for peaceful protest with no intention of inhibiting its operations. Others want to cause a degree of nuisance—for example, in minor blockades, chaining themselves to plant pots— with no real risk to safety. The amendment simply asks what the new provisions mean for them. What is the Government’s intention? Is a protest against nuclear weapons in the vicinity of Faslane, which the state currently believes to be in its interest, prejudicial to the interests of the United Kingdom? Would a minor blockade causing temporary inconvenience be in contravention of the clause? Surely these people are not to be convicted of such a serious offence, which carries up to 14 years in prison.

--- Later in debate ---

[Stuart C. McDonald]

That is useful and it might answer my question. The offence is committed if somebody approaches or is

“in the vicinity of a prohibited place”.

That obviously covers the peace camp. Is the Minister saying that at that stage there is nothing prejudicial to the UK’s safety and interests, and that such action only becomes prejudicial to UK safety and interests when people take further action, along the lines that he suggested?

[Stephen McPartland]

Yes. The intention is that people have to do something prejudicial to the UK’s interests to fall foul of the clause.

Prohibited places are inherently sensitive sites that are likely to be the target of state threat activity. Unauthorised access to such sites could be a precursor to harmful acts such as espionage or sabotage, and it is important that we have the tools and powers we need to adequately protect those sites.

--- Later in debate ---

[Stephen McPartland]

It goes back to the reasonableness test: is the person conducting a reasonable activity, or is the activity prejudicial to the United Kingdom’s national security interests?

For a person to be guilty of the offence, the prosecution must prove beyond reasonable doubt that the person knew, or reasonably ought to have known, that their conduct—for example, in entering the prohibited place—was unauthorised, which provides protections. Unlike the clause 4 offence, there is no requirement that the person have a purpose prejudicial to the safety or interests of the United Kingdom to commit this offence. That ensures that action can be taken in cases when a person has knowingly carried out unauthorised conduct at a prohibited place, such as trespassing, without having to consider whether that person has a purpose prejudicial to the United Kingdom’s safety or interests, which requires a higher threshold of potential harm to be demonstrated.

To take account of the fact that a purpose prejudicial to the safety or interests of the United Kingdom does not need to be proven, there are differences between the conduct caught under the offence under this clause and the offence under clause 4. For example, this offence does not criminalise the inspection of photographs of prohibited places, and it is not capable of capturing conduct in the vicinity of a prohibited place.

The Government do not consider it proportionate or necessary to capture the inspection of photographs under this offence, given that inspecting a photograph that has already been taken of a prohibited place cannot be classed as inherently unauthorised activity. Given the wide range of legitimate activities that could be undertaken in the vicinity of a prohibited place, and given that there is no inherent need for walking past a prohibited place to be authorised, the offence under clause 5 does not capture activity in the vicinity of a prohibited place.

The second prohibited places offence under clause 5 is a crucial addition to the tools our law enforcement agencies and courts can use to capture the full range of harmful activity that can take place at prohibited places. Even though this offence is not aimed at capturing the most damaging activity around those places, as clause 4 does, and attracts lower penalties, it is equally important that we introduce an offence that can capture activity that may seem less severe, but is still capable of interfering with and damaging the operations and security of the United Kingdom’s most sensitive sites.

This offence should be seen as part of a tiered approach alongside the new police powers to protect those sites, which I will come to, and it will ensure that law enforcement has a range of tools and powers at its disposal to protect those sites.

[Stuart C. McDonald]

The debate has been useful, particularly in relation to protestors, and it is useful to know that, apparently, the Minister’s view is that protestors approaching or being in the vicinity of a prohibited place will not necessarily engage the clause because, at that stage, the activity is not prejudicial to the interests of the United Kingdom. Something more is required before that part of the test is engaged. We might need to explore that further on Report, but for now it is important that we say protestors are not so interested in the Pokémon players. We can revisit that on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Clause 6

Powers of police officers in relation to a prohibited place

Question proposed, That the clause stand part of the Bill.

National Security Bill (Fourth sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Mr Jones]

Possibly this historic day shows the effects of global warming.

I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of

“metals, oil or minerals for use for UK defence purposes”.

I would like to define why it has been outlined in that way in the Bill.

I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.

The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?

Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?

I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?

I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.

I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.

[Stephen McPartland]

I commit to write to the hon. Member for Halifax—and the whole Committee—to answer her point about the police. I totally accept the genuine concern I am hearing from across party lines about what safeguards are in place to ensure that a place is designated for reasons of defence as opposed to Government embarrassment. The safeguard is that the power to designate only be exercised may if the Secretary of State reasonably considers it necessary to do so in order to protect the safety or interest of the United Kingdom.

--- Later in debate ---

[Holly Lynch]

Clause 12 is a substantial addition to the Bill so warrants further consideration. It introduces a new bespoke offence of state-sponsored sabotage, capturing activity conducted for, on behalf of or for the benefit of a foreign power, resulting in damage to property, sites and data affecting the UK’s interests and national security, which we are happy to support. What has taken the Government so long? It is an extremely welcome provision.

The need for a specific criminal offence of sabotage on the UK’s statute books is long overdue. The necessity for it has increased over time. Over recent years, the nature of sabotage—most notably, the nature of cyber-attacks and sabotage—has changed rapidly. Subsection (3) outlines all the ways in which the act of sabotage can manifest. Subsection (1)(b) is explicit, covering a person’s intent and whether they are

“reckless as to whether their conduct will result in damage”.

As MI5 director general Ken McCallum highlighted,

“cyber is no longer some abstract contest between hackers in it for the thrill or between states jockeying for position in some specialised domain...cyber consistently bites on our everyday lives.”

I was struck by the evidence provided by Paddy McGuinness, the former deputy national security adviser, when I asked him about clause 12 last week. He said:

“one of the difficulties with this grey space activity…is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q47.]

The sense that someone engaged in espionage on behalf of a hostile state could just as easily be instructed to engage in sabotage reminds us why the new offences are necessary as a package of measures. A report published by Lloyd’s of London only last month crystalises the threat posed by cyber-attacks and sabotage. The report, entitled “Shifting powers: Physical cyber risk in a changing geopolitical landscape” and written in partnership with the Centre for Risk Studies at the University of Cambridge, warned that:

“Whilst most cyber-attacks are digital, physical cyber-attacks–defined as virtual attacks which trigger physical disruption–are becoming increasingly commonplace. The rise of state-sponsored cyber-attacks is a significant focus for businesses and governments, driven by an evolving geopolitical landscape in the wake of Russia’s invasion of Ukraine.”

The UK’s national cyber strategy, published in February this year, also demonstrates the potential threat posed by cyber-sabotage. It states:

“The threats we face in and through cyberspace have grown in intensity, complexity and severity in recent years. Cyber attacks against the UK are conducted by an expanding range of state actors, criminal groups (sometimes acting at the direction of states or with their implicit approval) and activists for the purpose of espionage, commercial gain, sabotage and disinformation.”

From this, we can see that cyber-activity could be prosecutable under a number of the new offences, but I know that the ability to robustly take on sabotage with clause 12 is welcome to those on the frontline of mounting the UK’s defences.

Although outside of scope of the Bill, I will briefly make the point that the Computer Misuse Act 1990, which was the first major legislative attempt to tackle cyber-crime and criminalise hacking, is now also long overdue an update. May I suggest that we have another look at that legislation alongside the Bill and the provisions in this clause, to ensure that we are meeting the cyber-challenges we face as a nation as robustly as is required?

Existing legislation largely fails to accommodate for state-sponsored acts of sabotage. The Criminal Damage Act 1971 defines sabotage as:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

We therefore welcome the foreign power condition in subsection (1)(d), which will allow police to bring to justice those who work for or conspire with hostile Governments to prejudice the safety or interests of the UK.

We welcome that the offence will link to the preparatory conduct offence to give law enforcement and the intelligence agencies the powers to intervene at an early stage. Despite the changing nature of sabotage, we also welcome that the clause contains provisions to tackle acts of physical damage on sensitive sites, such as critical national infrastructure, property belonging to Her Majesty’s Government, military buildings and sites, other defence assets, or acts that impact goods, systems or services supplying the UK, such as data centres or undersea cable infrastructure. If I have not been clear enough, we very much welcome the addition of clause 12 to the Bill.

[Stuart C. McDonald]

I echo much of what the shadow Minister, the hon. Member for Halifax, said. As ever, I have slight concerns about the breadth of the foreign power condition and how that might interact with sabotage—for example, if a protest on behalf of one of the aforementioned non-governmental organisations causes some damage to a site. Of course, such protestors should face criminal law, but I would hope it would be general criminal law rather than the sabotage offence set out in clause 12 and the heavy sentence that comes with that.

For all the reasons set out by the shadow Minister, we support the inclusion of clause 12. The Minister moved the clause formally, but it would be useful for us to talk it through because this is a new departure for us, and it would be interesting to hear the Government’s thoughts on the nature of the offence.

[Stephen McPartland]

I will go through clause 12 in a bit more detail. As hon. Members have outlined, the clause makes provision for an offence of sabotage. It is designed to capture intentional reckless activity resulting in damage to assets including property, sites and electronic systems where the person is acting in a way that they know or should know is prejudicial to the UK’s safety and interests.

A state-linked saboteur poses as much of a potential risk to the UK’s national security as someone undertaking terrorist activities. Working to further the interests of a foreign state by damaging something of importance to the UK is sabotage and therefore should be reflected as such.

Although there are offences in legislation that cover similar activities, sabotage as a crime is not an offence under domestic legislation, which was a surprise to me. The existing related offences were not developed to address the specific threat of state-linked sabotage, and the new offence more appropriately addresses the threat that this type of state threat poses. For example, none of the existing offences has a link to a foreign power. Clause 12 resolves those issues by giving law enforcement and the intelligence agencies the tools to tackle sabotage that is carried out for a purpose that the saboteur knows, or should know, prejudices the UK’s safety or interests.

--- Later in debate ---

Foreign interference: general

[Stuart C. McDonald]

I beg to move amendment 51, in clause 13, page 11, line 26, leave out “England and Wales” and

“any part of the United Kingdom”.

This amendment would mean that “condition A” for the offence of foreign interference would be met by conduct outside the UK that would be an offence in any part of the UK.

[The Chair]

With this it will be convenient to discuss the following:

Government amendment 9.

Clause stand part.

[Stuart C. McDonald]

I will be brief. Clause 13 introduces a general offence of foreign interference that is punishable by up to 14 years in prison. As with clause 12, we support the broad idea—indeed, the structure of the offence appears to make sense—but it is a fairly novel departure for this country. I look forward to hearing the Minister talk us through precisely how the provision will work given that it is so novel and fairly complicated. I have said my piece on my concerns about the foreign power condition and the rather nebulous concept of the interests of the United Kingdom, so I will not repeat it.

The amendment asks a short, sharp question. Condition A applies if the foreign offence takes place outside the UK, and it is met only if the conduct is an offence under the law of England and Wales. The simple question is: why does that apply to England and Wales only? It does not apply to Scotland or to offences under the law of Northern Ireland. I genuinely do not know what the thinking behind that is. There may be a perfectly reasonable answer, and the amendment is designed to tease it out. I look forward to hearing much more from the Minister about how the offence will work. On the whole, the clause provides a justified and welcome new offence that we would support.

[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.

--- Later in debate ---

[Stephen McPartland]

Clause 13 provides for a criminal offence of foreign interference. It is and always will be an absolute priority to protect the UK against such interference. The principal aim of the clause is to create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states who seek to undermine UK interests, our institutions, political system and our rights, and ultimately prejudice our national security.

Clause 13 will act as a tool for disruption and deterrence, raising the cost to foreign states of carrying out interference activity by holding those responsible to account for their actions. I noted the concerns expressed by the hon. Member for Garston and Halewood very clearly. I have raised that issue myself, and it is something that we will talk about in the Home Department, because I understand those concerns. I will address the issue of recklessness later in my remarks. Reference was also made to the foreign power condition, which we will debate in much more detail later in our proceedings.

On the foreign influence registration scheme, I have spoken to hon. Members about that. The Home Secretary has committed to its formal introduction during Committee proceedings, and I put on record that I would like it to introduced during Committee proceedings in the Commons, so that it can be debated properly and dealt with here before being considered in the House of Lords. Donations from shell companies will be dealt with in the economic crime Bill.

We know that states around the world, including the UK, conduct open and transparent influence activities, such as using diplomacy to shape and align policy to benefit shared interests. That is a welcome part of transparent international engagement and is vital to the UK in achieving its interests. However, some states seek to further their strategic interests by going further than overt political influence, such as through cultivating and manipulating relationships with individuals and entities in the UK where power and influence lies and undertaking deceptive lobbying operations to shape public policy making. Although not necessarily hostile, those “interference” activities are typically non-transparent and outside the norms of diplomacy.

In our approach to legislating against foreign interference, we have chosen to target the intended effect of the foreign interference rather than the specific method used to achieve that result. We considered whether it would be more appropriate and effective to create specific offences, such as a bespoke “hack and leak” and disinformation offences, but that approach risked leaving gaps in our ability to prosecute foreign interference. Disinformation campaigns seek to sow discord and undermine public confidence in our institutions and values. Often, the damage caused by disinformation cannot be measured until long after the information is in the public domain. Our approach to foreign interference is intended to enable harmful behaviour to be disrupted at an early stage, before significant damage occurs. That is yet another reason to focus on the intended effect of foreign interference, as opposed to focusing on specific actions and methods of a state actor.

Clause 13 has been constructed with three conditions that must all be met in order for a person to have committed an offence. As is the case throughout the Bill, there must be a link to a foreign power, that is to say where conduct is undertaken for, or on behalf of, or with the intention to benefit, a foreign power. A person must intend that their conduct, or that a course of conduct of which their conduct forms a part, will have a specific effect. I will now turn to those effects to more detail.

The first stipulated effect is interfering with the exercise of a convention right as it has effect under the law of the United Kingdom. The aim of encompassing such intended effect is to catch activities that interfere with a right that is already protected from unjustifiable domestic interference under UK law such as freedom of speech. It has been evidenced that foreign states have engaged in activity that seeks to intimidate or threaten diaspora communities to stop engaging in lawful protest activities, or to embrace their home country or face punishment. It is our aim that such hostile activity can be stopped through this targeted approach.

The second and third effects look at affecting the exercise by any person of their public functions and manipulating whether or how someone uses services provided in the exercise of those public functions. The first of these two effects could relate to the functions of a person who holds public office, such as a Member of Parliament. The type of activity this effect could capture, subject to the other legal conditions being met, is conduct that seeks to affect a political decision. The second of the two effects could be manipulating whether or how any person makes use of vaccination services. In isolation, this is of course not a crime, but sophisticated and well-resourced state actors will choose topics that divide public opinion and pit us against one another. As I have already touched on, this clause focuses on the person’s intention, as opposed to the vector or means they use to achieve it. That is at the very core of what foreign interference is.

The fourth and fifth effects capture conduct that manipulates whether, or how, any person participates in a political or legal process under the law of the United Kingdom respectively. Examples of the type of activity that we consider those effects capturing, subject to the other legal conditions being met, would be threatening a member of a jury in order to prejudice a trial, stealing evidence of a crime in order to disrupt an investigation, or intending to secure the election of candidates with views favourable to, or favoured by, the foreign power.

The sixth effect is consistent with other offences in the Bill and could cover foreign interference in UK defence and security interests or trade deals being negotiated with countries around the world.

In addition to the foreign power condition needing to be met and an intention to cause one of the effects in subsection (2), the person’s conduct must meet at least one of three specific conditions: A, B or C. Condition A is that the person’s conduct constitutes an offence or, if it takes place in a country or territory outside the United Kingdom, would constitute an offence if it took place in England and Wales. That reflects the potential for foreign interference to be conducted through a range of methods, all with different outcomes. In seeking to bring about one of the effects in subsection (2), a foreign state actor could, in theory, commit an offence such as fraud or bribery in the course of their conduct.

Condition B is met when a person’s conduct involves coercion of any kind. The term coercion captures aggressive and violent forms of conduct such as damaging or destroying, or threatening to damage or destroy, a person’s property, or damaging or threatening to damage a person’s reputation. In addition, the term “coercion” also encompasses activity that causes spiritual injury to, or place undue spiritual pressure on, a person. This term follows existing precedents, as debated during the passage of the Elections Act 2022.

Condition C is met when a person’s conduct involves making a misrepresentation. A misrepresentation may include making either a statement or by any other kind of conduct and may be either expressed or implied. This covers a misrepresentation as to the person’s identity or purpose, as well as presenting information in a way that amounts to a misrepresentation, even if some or all of the information is true. As the recent Russian invasion of Ukraine has demonstrated, information can be weaponised. The new offence of foreign interference is a significant step forward in the UK’s response to tackling state-sponsored disinformation. We believe that the vast majority of state-sponsored disinformation captured by this clause will be done so by meeting condition C.

It is right that the framework we have devised consists of three high legal tests, which must all be met for an offence to apply. That is an effective and appropriate way to safeguard against capturing legitimate forms of influence or undermining and eroding the freedoms and values we are actively seeking to safeguard.

Additionally, this clause provides that the offence applies regardless of whether a person’s conduct takes place in the United Kingdom or elsewhere. This important component reflects the threat landscape of the 21st century and enables activity conducted overseas to be captured. I must reiterate that if this component did not apply to the clause as drafted, vast swathes of hostile activity could go unpunished, which could ultimately undermine the UK’s safety and interests. The provision in clause 13(10) is consistent with other offences in the Bill.

As I have said, clause 13 is not about restricting the rights and liberties of the British people. It reinforces such protections and privileges we care so deeply about. As I have noted, the offence consists of a framework with three explicit legal conditions that must all be met in order for a person’s conduct to be caught. Furthermore, the measures underpinning this clause also include the requirement of Attorney General consent in England and Wales, and Advocate General in Northern Ireland, in order to bring forward a prosecution.

Turning to the penalty, we propose a maximum of 14 years’ imprisonment on conviction, or a fine, or both. That reflects the seriousness of the harm that state threats can have on the UK and its interests. This is about activity that intends to interfere in our democracy, and we must not be complacent in ensuring that sentencing judges have available to them penalties that can reflect the potential harm caused by this type of conduct.

Therefore, the best way of tackling the significant threat we face from hostile activity by states is to ensure that we have appropriate and proportionate measure that do not overshadow our freedoms. As previously stated, I am committed to ensuring that we have a full suite of provisions in our arsenal to protect our national security. I hope the Committee will agree on the clear requirement for clause 13.

Government amendment 9 creates a bridge from the offence in clause 13 to the priority offences in the Online Safety Bill, which will strengthen the Government’s response to the state-sponsored disinformation that seeks to undermine the UK’s interests. The new offence of foreign interference will criminalise state-sponsored disinformation affecting the UK, allowing us to disrupt and deter foreign actors engaging in disinformation campaigns against the UK. As well as prosecuting perpetrators where possible, we need online platforms to take action against the content. Designating the offence as a priority offence in schedule 7 to the Online Safety Bill will require online platforms to guard against and act swiftly to remove content that amounts to an offence.

The risk assessment and safety duties provided for in the Online Safety Bill include the use of proportionate measures to reduce and manage the risk of harm to individuals and prevent users from coming across priority illegal content on the service. Where priority illegal content is present on the service, providers must minimise the length of time for which it is present and also swiftly remove the content on being alerted to it.

Officials in the Home Office and the Department for Digital, Culture, Media and Sport continue to work closely with Ofcom and platforms to ensure that guidance is produced to allow platforms to take proportionate steps towards removing state-sponsored disinformation. To comply with these duties, platforms will have to consider the design and features of their service and the operation of their algorithms. In the context of the foreign interference offence, that could include measures to ensure that platform manipulation, such as engaging in artificially co-ordinated messaging campaigns, is more difficult, thus mitigating the risk of co-ordinated inauthentic behaviour and disinformation more broadly.

While amendment 9 ensures robust action on state-sponsored disinformation, it must be set in the context of a regime that will also defend freedom of expression and the invaluable role of a free press. Platforms and Ofcom will have duties relating to freedom of expression for which they can be held to account. Platforms will not be able to arbitrarily remove harmful content. They will need to be clear what content is acceptable on their services and enforce the rules consistently. Users will have access to effective mechanisms to appeal the removal of content without good reason.

It is right for the Government to go further in addressing disinformation and wider information operations undertaken and amplified by foreign states. Amendment 9 will address the most concerning information campaigns being amplified by foreign powers who are seeking to advance their interests and harm the UK.

On the point about recklessness, my understanding is that we are trying to get the balance right between legitimate and illegitimate restrictions. The concern was that including recklessness would possibly widen the scope and would then move into the political and diplomatic arenas. There is a reason—it may not be the best one, but there is a reason.

Amendment 51 seeks to modify condition A subsection (4), so that conduct outside the UK is within the scope of condition A where such conduct would amount to an offence in any part of the UK, not just England and Wales. Condition A

“is that the person’s conduct constitutes an offence or, if it takes place…outside the United Kingdom, would constitute an offence if it took place in England and Wales.”

Conduct taking place in Scotland or Northern Ireland that constitutes an offence in Scotland or Northern Ireland would be covered here. It is only where the conduct takes place outside the UK that the criminal law of England and Wales is currently used as the benchmark. The clause has been drafted this way for operational effectiveness and to ensure no unintended or complex consequences where, for example, a prosecution is brought in one part of the UK but relies on a charge from another part of the UK. We expect the amendment would have little practical impact on prosecutions.

However, that said, I accept the spirit of the amendment and I personally believe that we should be seeking to legislate for all parts of the UK. If the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw the amendment, I propose to take the point away to consider further. In particular, I want to ensure that there are no unintended practical difficulties for investigators and prosecutors that may make bringing charges for foreign interference, which can often emanate from overseas, harder than necessary. Another consideration is ensuring that any amendment does not affect the utility of our Government amendment to add the offence of foreign interference to the Online Safety Bill, where platform operators will be under a duty to guard against and swiftly remove content that amounts to an offence of foreign interference.

I will consider those points and hope to be able to come back favourably at a later stage. I ask that the hon. Gentleman withdraw the amendment.

[Stuart C. McDonald]

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 9, in clause 13, page 12, line 13, at end insert—

“(12A) In the Online Safety Act 2022, in Schedule 7 (priority offences), before the italic heading “Inchoate offences” insert—

“Foreign interference

32A An offence under section 13 of the National Security Act 2022 (foreign interference).”—(Stephen McPartland.)

This amendment amends the Online Safety Act expected to result from the Online Safety Bill currently before Parliament to make foreign interference a priority offence for the purposes of that Act.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14

Foreign interference in elections

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[The Chair]

Of course, we will deal with new clause 3 when we get to the new clauses at the end.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Schedule 1

Foreign interference in elections

Amendments made: 10, in schedule 1, page 51, line 5, at end insert—

“Offences under the Electoral Law Act (Northern Ireland) 1962 (c.14 (N.I.))

[Stuart C. McDonald]

I beg to move amendment 52, in clause 15, page 13, line 6, leave out “in preparation for” and insert “which materially assists”.

This amendment ensures that only actions materially contributing towards to acts prohibited by this section will be criminalised.

[The Chair]

With this it will be convenient to discuss clause stand part.

[Stuart C. McDonald]

Clause 15 criminalises conduct that is preparatory to some of the offences we have debated. It is fair to say that this is another amendment that I might have approached slightly differently had I been able to draft it in the light of the evidence session on Thursday, rather than in advance of it. Obviously, this clause was widely welcomed at that evidence session, and I accept that evidence.

I thought Sir Alex Younger made an interesting observation when he said:

“The bottom line is that we have to get in front of this stuff…We need to solve it before it has happened, and that raises a set of ethical and legal dilemmas where it is important to be striking the right balance”.––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 19, Q38.]

While he welcomed how the issue was treated in the Bill, he recognised that there are ethical and legal dilemmas.

I am another one of those lawyers who seem to overrun this place. [Laughter.] Thanks very much. Punishing preparatory conduct is not something I can recall from my dim and distant past as a law student, although that is probably as much to do with my memory as anything else. However, the serious point is that various crimes are set out and designed to punish certain acts; after that, other inchoate crimes such as attempts or conspiracy attach themselves to those basic criminal laws.

I absolutely appreciate that criminalising preparation allows enforcement and prosecution at an even earlier stage than an attempt, but the sort of legal and ethical questions raised by it come sharply into focus when we realise that the maximum sentence for such preparatory conduct is life imprisonment. What is particularly striking is that some of the completed offences do not attract that sentence. That seems pretty odd. If somebody guilty of completing the actual offence faces a maximum sentence that is lighter than the maximum sentence for somebody who is simply convicted of preparing for that offence, that seems a bit of an inconsistency.

Preparatory conduct offences also attach themselves, of course, to offences that I have already argued might be worded quite broadly. When we debated clauses 1 and 4, I made various points about the foreign power condition, national interest and so forth. For example, on clause 4, I expressed concerns about protesters operating in the vicinity of a naval base. The idea of life imprisonment for preparing for a blockade at Faslane naval base seems quite extreme. I appreciate that, for various reasons that we discussed, clause 4 does not attach in that way, but that is why we should take adding a preparatory offence to arguably already wide offences very seriously and be very cautious about it.

Indeed, in the clause the notion of preparatory conduct is pretty vaguely defined, I would say. It refers to

“any conduct in preparation for”.

Not to be flippant—particularly in relation to jackets, which everyone has taken off—but if someone puts their jacket on before heading along to a peaceful protest, is that preparatory conduct? I accept that that will not lead to life imprisonment—we hope—but what exactly do we mean by preparatory conduct? The amendment suggests that it must materially contribute to the offence.

The ethical point is that we need to leave people able to change their mind and not end up incentivising them just to carry on and complete the act. If they will already get life imprisonment for preparing, they might arguably say, “Well, I’ve gone this far. I might as well just carry on and complete the act.” Where is the incentive of saying, “Well, okay, you’re going to get punished for your preparatory conduct, but the consequences will be much less severe if you stop now rather than carry on and complete the act”?

If someone sits for three days with a confidential document on their desk in an envelope addressed to a Russian agent, does not the threat of life imprisonment for having stuck the document in an addressed envelope and put a stamp on it effectively encourage them to go through with that act?

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

The hon. Gentleman is talking about acts in preparation for an offence. A person engaged in preparing for an act of this type, even if they fail, could still be prosecuted, because they have been preparing for something. Who assesses material assistance? It could be a very small thing, but small things can be very incremental and lead to something bigger. Perhaps he could highlight that a little.

[Stuart C. McDonald]

That is a perfectly legitimate question and I suppose that ultimately it would be down to the judge to decide what is meant by a material contribution. As I say, putting a jacket on—again, I do not want to be flippant—could be about anything. Does it bring whatever is planned closer to fruition? I do not know. It could be more readily argued that purchasing equipment materially takes forward what was in contemplation, for example. However, as I say, that is a perfectly legitimate question.

The point that I was coming to was that the amendment seeks to put us in a place where we encourage people to change their mind, essentially, and not to put people away for life even if they are on the verge of engaging in conduct that would thoroughly merit that sentence. It would give them an out that will still attract punishment—possibly—but will give them that choice, basically.

We have not have very much in the way of written evidence, but we did receive some interesting written evidence from Dr Kendall at the University of Queensland. She makes the argument, as I have tried to, that the sentence is too harsh. She also argues that the Bill could be better worded. Furthermore, she makes the point that we should probably put in the Bill that someone cannot be convicted of an inchoate preparatory conduct offence. Basically, she is worried that someone might be found guilty of attempting to prepare, which takes us a step further back and complicates the picture even further. In her written evidence, she suggests that it should be made clear that someone cannot be charged with an attempt to prepare, which will take us too far through the looking glass.

--- Later in debate ---

[Stephen McPartland]

My hon. Friend makes a very good point. At the end of the day, my understanding is that the offences are designed differently, which is why we were unable to capture the relevant preparatory activity as part of the offences themselves. I am not a lawyer, but effectively those offences are designed differently, and that is where we are.

Amendment 52 seeks to raise the threshold of that which be proven to show the preparatory nature of the clause. Those who intentionally engage in preparatory conduct, as specified under clause 15, pose a significant risk to national security, and that will be true regardless of whether or not their actions materially assist the ultimate outcome. For example, if a security guard in the employment of a foreign power leaves a door open to facilitate access into a prohibited place by a hostile actor, that would constitute a preparatory act. If the hostile actor then used an alternative route to access the site, for example, cutting through a fence, the guard’s act would not have materially assisted them and his acts would go unpunished. I am sure that the Committee would agree that that would be an unacceptable outcome.

Furthermore, the offence enables disruptive action to be commenced at an early stage, to provide the greatest chance of avoiding the harmful activity occurring. It will not always be possible to determine the end goal of a person’s conduct, and thus whether their preparations are of material assistance. Indeed, in some cases, an individual may not even have decided the precise harmful acts that will result from their conduct, but rather will have the intent that their preparatory conduct will bring out harmful activity in general. However, in order to be caught by this offence the individual must have the intent that their conduct will bring about one of the relevant harmful outcomes. I hope that reassures the Committee that the offence cannot be used to prosecute those who undertake actions without any awareness or intent that it could support the commission of a relevant act.

The amendment would undermine the utility of what is otherwise a key preventive tool. Therefore, I do not support it, and I ask the hon. Gentleman to withdraw it.

[Stuart C. McDonald]

I am grateful to the Minister for his explanation. I particularly take his point about the door being left open, and that ultimately ending up not making a material contribution to what happened thereafter. I will go away and think again about the issue, but I think the Minister’s explanation was very helpful. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

National Security Bill (Fifth sitting)

Stuart C McDonald Excerpts

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to see you in the Chair, Ms Ali. I very much welcome your early judgment call on jacket wearing; we are all eternally grateful.

Clause 16, as the Minister outlined, inserts new section 69A into the sentencing code to provide a new aggravating factor for sentencing when the foreign power condition is met in relation to an offence. The court will make its determination on the basis of the usual information before it for the purposes of sentencing, which may include the evidence heard at trial or evidence heard at a Newton hearing following a guilty plea. If the court determines that the foreign power condition is met in relation to conduct that constitutes the offence, it must treat that as an aggravating factor when sentencing the offender and must state in open court that the offence is so aggravated.

We are introducing a measure that will mean that, if an individual is found guilty of an offence that is not outlined in the Bill, but the foreign power condition can be proven, a judge may aggravate their sentence. On Second Reading, the Home Secretary provided a serious recent example to highlight why she felt the measure was needed, and we very much recognise the merit in that.

However, I note that a sentence would be aggravated only up to the maximum available for the original offence. I have sought a legal opinion about whether there is a precedent for aggravating an offence beyond the maximum sentence where deemed appropriate. Although the judge ultimately has discretion to sentence beyond the sentencing guidelines, it is far from common practice and will be subject to appeal.

I want to work through the application of the measure. For example, if someone acting on behalf of a foreign state were to commit a section 18 assault against someone who was going to speak at an event against that Government as a means of preventing them from honouring that commitment, it might be possible to prosecute them under some of the new offences in the Bill. If that is not the case and they are prosecuted for the section 18 assault, the foreign power condition having been met and the sentence aggravated, it is still subject only to the maximum sentence for a section 18 assault. I feel that the weight of the very serious sentences in this Bill will not be felt by the perpetrator in that instance.

Will the Minister outline why we are not able to push the sentences under clauses 16, 17 and 18 further? Will he comment on whether the usual so-called early plea discount will be ruled out in cases where the foreign power condition is met?

Clause 17 introduces the measure for offences in Northern Ireland, and clause 18 makes a corresponding provision to the one in clause 16 for sentences to be aggravated where the foreign power condition is met for offences in Scotland. Clause 19 amends the Armed Forces Act 2006 to make corresponding provision for service courts considering the seriousness of a serious offence for the purposes of sentencing. The case for tougher sentencing is even stronger in those circumstances, given that people serving in the armed forces and acting on behalf of our nation potentially have a level of access to the UK security apparatus that others do not have. We recognise the seriousness and necessity of these measures, and fully support them, but will the Minister address the points I have raised?

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Ms Ali. I have one very short point. I am very supportive of these measures. Clause 18, as we have heard, relates to Scotland. As I understand it, it operates and is drafted similarly to other aggravations in Scottish criminal law. I just want to be absolutely sure that the Government are collaborating closely with the Scottish Government to ensure it fits with the schemes in Scottish criminal law. What discussions has he had with compatriots up there?

[Stephen McPartland]

I am very grateful for hon. Members’ responses and support for these clauses, and I will try to provide clarity on the points made by the hon. Member for Halifax.

Serious offences that have a state threat component, such as murder and violent offences, already have significant penalties, as the hon. Lady said, and the aggravating factor will therefore allow for those sentences. However, she is right that for lower-level offences such as harassment, stalking or common assault, this would be a useful example of how these powers can be used if someone is not able to use some of the other clauses, so that they can identify that this person is part of the problem, and the person can at least be prosecuted for something, whereas at the moment it would not really be possible to prosecute them.

Also, the aggravating factor allows for an increase in the sentence, but within the sentencing code. The hon. Lady is correct that if it was a one-year sentence under the guidelines, the aggravating factor would be a maximum sentence of one year.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clauses 17 to 19 ordered to stand part of the Bill.

Clause 20

Powers of search etc

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Holly Lynch]

I thank the Minister for his explanation. Clause 20 and schedule 2 deal with the power of entry, search and seizure in relation to the new offences created by part 1 of the Bill. There are a number of powers here that seem largely appropriate and proportionate for the reasons outlined by the Minister.

However, I will press the Minister on paragraphs 3 and 4 of part 1 in schedule 2, on the production orders relating to confidential material. These provisions set out the conditions that must be met in order for a constable to apply to a judge for a confidential material production order. I was listening carefully to what the Minister said on that. The person specified in that order then has to produce, within a specified period, any material that they have in their possession, custody or control.

The specified period is seven days. The clause says that it is seven days unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. Why is it seven days? Given the seriousness of some of the offences and the consequences of confidential material being in the hands of someone who should not have it—potentially to the benefit of a hostile state—that feels like quite a long period for such material to be able to be used against us. I would be grateful if the Minister explained the rationale for specifying the period as seven days.

My second point is that there is a lot going on in schedule 2, much as there is in schedule 3. While there are provisions for an ongoing review of the powers created by part 2 of the Bill, at clause 49, I think that part 1 should be reviewed by an independent reviewer to safeguard against any unintended consequences once the legislation is enacted. That is why the Opposition have tabled new clause 2; we will make the case for that provision when we reach the appropriate point.

[Stuart C. McDonald]

I broadly welcome the provisions. As the hon. Member for Halifax said, they are extensive powers, so I am very sympathetic to her suggestion that they should be subject to review in the same way that other parts of the Bill are. I appreciate that those extensive powers are modelled on the equivalent provisions in terrorism legislation. I have no problem with those provisions being borrowed from such legislation, but they need to be justified in their own context. The Minister has usefully set out why exactly they are needed here. The SNP is broadly supportive of that.

I have a couple of questions. I am not familiar with the idea of allowing police officers or sheriffs to order a person to explain material that is seized. I see that is borrowed from terrorism legislation. However, I wonder how that works alongside the right not to require someone to self-incriminate, particularly when there is an emergency power for police officers to require an explanation—if that is not complied with, it can be a criminal offence. I am interested in how that works; I assume it works in the context of the terrorism legislation, but it would be interesting to hear a bit more about that. I am also interested in the idea of what a “great emergency” amounts to. That is not a concept that I have seen before. Are we talking about threat to life and limb, essentially? I am not sure about that.

My only other point is that how the provisions on search and seizure apply depends largely on how the foreign power condition operates. I said at the outset of our debates on clause 1 that I have some difficulties with how broadly some aspects of the term were drawn. For example, the non-governmental organisations I referred to during that debate and journalists working for a foreign state broadcaster can be brought within the foreign power condition, meaning that they are subject to the search-and-seizure powers. We can probably come back to that in the context of clause 1, but it is relevant to our discussion. It could be those people who are searched or who have documents seized under the schedule, including confidential journalistic material.

Those are a couple of points to emphasise, but we broadly support what is in the clause and the schedule.

[Stephen McPartland]

I am grateful for Members’ support. To sum up, the important thing is to recognise that between 2017 and 2022, the powers relating to great emergency have been used seven times in England and Wales and once in Scotland, and they have never once been used by a senior police officer during that five-year period. This will not happen weekly or monthly; it will be a very rare event. We are trying to mirror the legislation that has proven to be successful in the Terrorism Act 2000. The seven days figure also mirrors the legislation in that Act. I totally accept the point made by the hon. Member for Halifax: if the judge has the evidence in front of him and wants to make it a different time period, that is then a judicial decision as opposed to any other kind of decision.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Schedule 2

Powers of entry, search and seizure

Amendment made: 12, in schedule 2, page 62, line 9, after “rules” insert “and magistrates’ courts rules”.—(Stephen McPartland.)

This amendment enables Northern Ireland magistrates’ courts rules to make provision about proceedings under Schedule 2.

Schedule 2, as amended, agreed to.

Clause 21

Arrest without warrant

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Holly Lynch]

The clause provides a power of arrest without warrant and includes provisions about subsequent detention. The explanatory note explains that the provisions are modelled on those in section 41 of and schedule 7 to the Terrorism Act 2000, as the Minister said, which give police officers the power to arrest persons suspected of terrorism-related offences without a warrant.

We recognise the importance of granting law enforcement officers this power. The sense within policing is that it will provide the police a window in which to work, in order to undertake the necessary analysis and investigative work needed to confirm if an act of espionage or sabotage has been committed. Once a more substantive offence is established, the person in question must then be arrested for that offence, which would trigger the further relevant detention powers.

I have a query from within law enforcement, which relates to subsection (9). If the warrant for further detention is refused, a person can still be detained in hospital or if they are removed to hospital because they needed medical treatment. I am not aware that any such provision to continue to detain someone on the basis they need medical treatment when the application has been refused exists within any other detention powers. I would be grateful if the Minister could clarify that point.

[Stuart C. McDonald]

The provisions are for very significant powers of arrest and people can remain under arrest for a quite striking period of time, so we should be cautious. The key issue for me is subsection (1), because arrest without a warrant is justified not by the suspicion of a specific event set out in the Bill, but by involvement in foreign power threat activity. Will the Minister say a little more about why that decision has been made?

We will obviously get to clause 26 and the definition of “foreign power threat activity” soon, but it is a much broader concept than being under suspicion of one of the particular offences in the Bill. It could be somebody providing assistance or support to individuals, or known to be involved in certain types of conduct. Why have these powers of arrest without warrant been drafted differently compared with the powers on search and seizure? The search-and-seizure powers relate to specific offences under the Bill. The power of arrest without warrant applies to a much broader category of people. Given the significance of the powers, and how long people can be detained for, it is important that we push the Minister a little bit further on why the Bill has been drafted in this way.

[Stephen McPartland]

I am grateful for the contributions and the general support. On safeguards, the powers mirror the powers in the Terrorism Act 2000, which are very important and have proven to be very disruptive, as well as useful and effective in keeping the country safe. It is critical that the police have strong powers of arrest and I outlined the reasons for that. Currently, a person can be detained for 24 hours. These provisions allow a detention for 48 hours, which would have to be reviewed periodically after 12 hours, so there are safeguards. The provisions mirror the 2000 Act, which has proven very effective and very disruptive.

On the question asked by the hon. Member for Halifax, the detention clock stops if the individual goes to hospital. If a warrant is refused, they can only be detained for 48 hours. These may appear to be very significant powers, but a person is not going to be held for a huge number of days.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Schedule 3

Detention Under Section 21

--- Later in debate ---

[Stephen McPartland]

I know, and I will write to the hon. Lady, because I do not know the answer.

As we have already discussed in Committee, state threats activity poses a serious and enduring risk to UK security, and the Bill must provide law enforcement agencies with the tools they need to combat hostile activity. Indefinite retention of biometric data enables the police and the security services to use the data to support investigations into state threats offences and other criminal activity. That mirrors the approach taken in PACE and the Terrorism Acts.

Given that threat, it is right that where an individual with a previous conviction for a recordable offence is arrested under the state threats arrest power in clause 21, or is subject to a STPIMs notice, biometric data taken under those regimes should be retained indefinitely. Accordingly, the amendments provide for indefinite retention of biometric data in these circumstances in schedules 3 and 9 respectively.

Out of an abundance of caution, the provisions were not included when the Bill was introduced while we considered the questions raised by the Gaughran judgment. Based on the UK response to that judgment, I am pleased to confirm to the Committee that these provisions are indeed compatible with the European convention on human rights and, therefore, should be included in the Bill.

As highlighted, state threats investigations can be complex and resource-intensive. By bringing forward the amendments, we are strengthening the ability of the police to use biometric data to support criminal investigations. Not agreeing to the amendments would create a position where the police’s ability to retain biometric data of a person with a previous recordable conviction would be more restricted than in other cases.

Aligning our approach with that of TACT and PACE ensures consistency in respect of biometric regimes. The requirement for ongoing review of retention, in accordance with the Data Protection Act 2018, ensures that interference with the right to respect the private and family life of persons to whom the data belongs is necessary, proportionate and in accordance with the law. I will now speak briefly to the remaining amendments in the group, which are comparatively minor and technical.

[Stuart C. McDonald]

Before the Minister moves on, I get the general thrust of why those amendments have been tabled but my concern is the inclusion of people who have accepted a caution or even a youth caution. It seems quite extreme to make them subject to lifelong retention of significant information on them. They have not been tried and the fact that they have had a caution means that, presumably, the circumstances were not the most serious. Does he have anything to say about those circumstances?

[Stephen McPartland]

I am grateful for the intervention. What we are trying to do is to mirror what is in TACT and PACE to keep the regimes identical so there are not different ones for different areas. Obviously, if someone has accepted a caution, they have in essence accepted that they were guilty of an offence—they have just not proceeded to court.

--- Later in debate ---

[Holly Lynch]

Having heard the Minister’s detailed explanation for this group of Government amendments, I will come back to the issues in the slightly wider discussion on schedule 3, which is the next proceeding.

[Stuart C. McDonald]

I do not need to say much more. The Minister understands from my intervention that I have some reservations about the lifelong retention of the materials. I shall give that further thought. Other parts of the relevant amendment are perfectly sensible, so I will not oppose the amendment at this stage. Further thought should be given to it, though. The Government have explained a number of times how they are copying what is in the counter-terrorism legislation, which is fine and understandable but does not in of it itself justify the measures in this sphere of behaviour. I will look at the matter again. I want to put on the record that I am slightly uneasy about that type of provision.

[Stephen McPartland]

I am grateful for the support for the amendments.

Amendment 13 agreed to.

Amendments made: 14, in schedule 3, page 82, line 22, leave out “or 42”.

This amendment removes reference to paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 from a list of provisions under which fingerprints, data and other samples may be taken. Reference to paragraph 42 is not needed because its contents are already covered by paragraph (e).

Amendment 15, in schedule 3, page 82, line 26, leave out sub-paragraph (2) and insert—

“(2) Paragraph 19 material may be retained indefinitely if—

(a) the person has previously been convicted—

(i) of a recordable offence (other than a single exempt conviction), or

(ii) in Scotland, of an offence which is punishable by imprisonment, or

(b) the person is so convicted before the end of the period within which the material may be retained by virtue of this paragraph.

(2A) In sub-paragraph (2)—

(a) the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—

(i) a recordable offence under the law of England and Wales if done there, or

(ii) a recordable offence under the law of Northern Ireland if done there,

(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);

(b) the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).

(2B) Paragraph 19 material may be retained until the end of the retention period specified in sub-paragraph (3) if—

(a) the person has no previous convictions, or

(b) the person has only one exempt conviction.”

See Amendment 13.

Amendment 16, in schedule 3, page 83, line 37, leave out “and Northern Ireland”.

This amendment and Amendment 17 clarify the identity of the specified chief officer of police in Northern Ireland.

Amendment 17, in schedule 3, page 84, line 5, at end insert “, and

(c) the Chief Constable of the Police Service of Northern Ireland, where—

(i) the person from whom the material was taken resides in Northern Ireland, or

(ii) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.”

See Amendment 16.

Amendment 18 in schedule 3, page 84, line 5, at end insert—

“20A (1) For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if—

(a) in relation to a recordable offence in England and Wales or Northern Ireland—

(i) the person has been given a caution or youth caution in respect of the offence which, at the time of the caution, the person has admitted,

(ii) the person has been found not guilty of the offence by reason of insanity, or

(iii) the person has been found to be under a disability and to have done the act charged in respect of the offence,

(b) the person, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—

(i) a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that Act,

(iii) a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(c) the person, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the person’s insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,

(d) a finding in respect of the person has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,

(e) the person, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the person is liable to pay by virtue of section 131(5) of that Act, or

(f) the person, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.

(2) Paragraph 20 and this paragraph, so far as they relate to persons convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).

(3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 or 101A of the Protection of Freedoms Act 2012.

(4) For the purposes of paragraph 20—

(a) a person has no previous convictions if the person has not previously been convicted—

(i) in England and Wales or Northern Ireland of a recordable offence, or

(ii) in Scotland of an offence which is punishable by imprisonment, and

(b) if the person has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the person was under 18 years of age.

(5) In sub-paragraph (4) ‘qualifying offence’—

(a) in relation to a conviction in respect of a recordable offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in respect of a recordable offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(6) For the purposes of sub-paragraph (4)—

(a) a person is to be treated as having previously been convicted in England and Wales of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);

(b) a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);

(c) a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);

(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).

(7) For the purposes of paragraph 20 and this paragraph—

(a) ‘offence’, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;

(b) a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—

(i) a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or

(ii) such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.

(8) If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 20 whether the person has been convicted of only one offence.”

See Amendment 13.

Amendment 19, in schedule 3, page 84, line 21, at end insert—

“(ca) the Chief Constable of the Ministry of Defence Police,

(cb) the Chief Constable of the British Transport Police Force, or”.

This amendment enables the Chief Constables of the Ministry of Defence Police and the British Transport Police Force to make a national security determination in relation to fingerprints, data and other samples.

Amendment 20, in schedule 3, page 89, line 36, leave out paragraphs (j) to (l).

This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 21, in schedule 3, page 90, leave out lines 1 to 3.

This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 22, in schedule 3, page 90, line 3, at end insert—

“‘recordable offence’ —

(a) in relation to a conviction in England and Wales, has the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in Northern Ireland, has the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));”

See Amendment 13.

Amendment 23, in schedule 3, page 90, leave out lines 6 to 24 and insert—

“‘responsible chief officer of police’ means—

(a) in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police, or a DNA profile derived from a sample so taken, the Chief Constable of the Ministry of Defence Police;

(b) in relation to fingerprints or samples taken by a constable of the British Transport Police Force, or a DNA profile derived from a sample so taken, the Chief Constable of the British Transport Police Force;

(c) otherwise—

(i) in relation to fingerprints or samples taken in England or Wales, or a DNA profile derived from a sample so taken, the chief officer of police for the relevant police area;

(ii) in relation to relevant physical data or samples taken or provided in Scotland, or a DNA profile derived from a sample so taken, the chief constable of the Police Service of Scotland;

(iii) in relation to fingerprints or samples taken in Northern Ireland, or a DNA profile derived from a sample so taken, the Chief Constable of the Police Service of Northern Ireland.”

This amendment and Amendment 24 make provision identifying the responsible chief officer of police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.

Amendment 24, in schedule 3, page 90, line 24, at end insert—

“(2) In the definition of ‘responsible chief officer of police’ in sub-paragraph (1), in paragraph (c)(i), ‘relevant police area’ means the police area—

(a) in which the material concerned was taken, or

(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken.”—(Stephen McPartland.)

See Amendment 23.

Question proposed, That schedule 3, as amended, be the Third schedule to the Bill.

National Security Bill (Sixth sitting)

Stuart C McDonald Excerpts

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Ben Everitt]

That is probably beyond what I can say here, and indeed beyond what I am aware of. It is one of those situations in which, were I a Minister, I would be happy to write to the hon. Gentleman—but I am not. Far from gold-plating, as referred to by the hon. Member for Halifax, clause 23 does not create a blanket criminal law immunity for our intelligence officers. It does not change the application of other criminal law offences that overlap with those underneath the Serious Crime Act 2007. It provides no change to the UK’s international law obligations.

I assume that the Minister agrees that the approach undertaken in the Bill is more limited and targeted than the approach other key allies have deemed necessary to protect those working on their behalf. Indeed, last week we heard from Alex Younger, the former chief of the Secret Intelligence Service. During his oral evidence he noted that there is an international precedent for such measures. He was referring to Australia; I understand that it was section 41 of the Australian Intelligence Services Act 2001, where there is a much broader immunity. That Act states:

“A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.”

Clause 23 is much more limited than that example. Rather than a proposal for wholesale immunity, it will just remove the legal risk for individuals’ actions that are done in good faith and following all authorised processes. That risk should not be underestimated given the chilling effect that we have discussed over the past couple of weeks. That effect can prevent or even delay the sharing of critical intelligence with international partners. Thus, the line of argument that the provision is too broad does not really hold when considered in the context of what our key allies are doing in relation to sharing information.

I express my support for clause 23, and the core principle that this is the right thing to do. We do not expect the current criminal liability of the Serious Crime Act offences to sit with trusted individuals who are conducting authorised, highly sensitive and vital national security work to keep our country safe.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I rise to support a lot of what the hon. Member for Halifax has said already. Nobody on the Committee doubts the importance of collaboration; we all recognise how crucial that is. I do not think that any of us doubt that the services have approached the Government having identified what they perceive to be a problem, and that the Government are genuinely engaged in trying to resolve that. One of the challenges that we face as parliamentarians is the degree of confidentiality and secrecy that surrounds their operations, which sometimes makes it difficult for us—particularly if we are not members of the Intelligence and Security Committee—to properly understand the nature of the problem and how it can be resolved.

[Mr Jones]

I am very conscious of what the hon. Gentleman has said, but to date neither the Government nor the security services have provided any justification or examples to the ISC as to why the clause is needed.

[Stuart C. McDonald]

I am grateful to the right hon. Gentleman, who is a member of the ISC, for clarifying that. For that reason, I am not dead set in my opposition to the clause by any stretch of the imagination—I am open to persuasion. However, we need evidence through the ISC that there is a problem and that clause 23 is the best way to solve it. As matters stand, I cannot say that I have been persuaded of either of those things.

First and foremost, it remains difficult to see how officers of the services in question can commit an offence under the 2007 Act unless they intend an offence to be committed, or, secondly, unless they have a belief that their action will assist an offence. That is a high threshold, even before defences kick in.

We have heard already that the section 50 defence of acting reasonably applies. Given the “purpose” and “authority” under which any action of information sharing would take place, it surely seems very likely that that defence could easily be made out. That point has already been made by a member of the ISC this afternoon. It almost looks like that defence, in section 50(3) of the 2007 Act, was designed with employees of the agencies in mind. The Minister has asserted that the defence is vague, but they seem to be a perfect fit for some of the circumstances that we are considering.

Even if the Minister is correct, perhaps the better response would be to amend the defence, rather than disapplying schedule 4 altogether. It is not clear why it can be argued that the reasonable defence is any more vague than the concept in this clause of

“the proper exercise of any function”.

It is not clear to me what conduct that concept is and is not supposed to cover. We need clear explanations and I do not think we have been given them.

Will the Minister give an example of conduct that is a proper exercise of any function of the services, but that is currently subject to the chilling effect of the 2007 Act and would therefore be saved by the Bill? Why is such conduct not able to get over the threshold of the reasonable defence already? Why, as has been asked, is such conduct not able to be authorised under section 7 of the Intelligence Services Act 1994? What type of data sharing is subject to this chilling effect and what causes that effect? Is it the remote possibility of data being used for a very serious crime or the significant chance it could be used for a less serious crime? Is it both? Is it neither? It is very hard to get a handle on what precisely the provisions are aimed at.

The Minister knows that concerns were raised on Second Reading about the potential for the clause to have a much more significant effect on actions that could, for example, support rendition or torture. He has set out today and in correspondence that domestic and international law means that such action would not be protected by clause 23. We will give that further consideration, but, in my view, the Government have much more to do to persuade us that there is a real problem here, and one that requires legislative intervention.

Even if a problem does have to be addressed, I am still to be convinced that this is the right response. Are there other options we could look at? Of course there are. For example, in last week’s evidence there appeared to be the suggestion that it was not so much the risk of conviction that was feared, but the risk of an investigation and being dragged to the courts and having to establish a defence of reasonableness. That was one of the problems.

Different things could be done. The clause could be moved around so that it is not a defence, where the burden lies on the person accused. We could make it an intrinsic part of the offence in the first place, so that nobody is dragged to court and has to establish the defence. There are other things that could be done—for example, requiring certain authorisations for prosecutions and so on.

Let us have that discussion, assuming that we can be persuaded that there is a problem here. Are there different ways to address it? For the moment, we remain a little bit in the dark on what precisely the nature of the problem is, and are unconvinced that the provisions in the clause are the best way to resolve any problem that does exist.

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

Our intelligence and security services are this country’s frontline of defence, and we need to ensure that they remain the best and most professional in the world. To do that, they need to know that if an individual makes a decision in good faith and in accordance with all relevant procedures, to keep us safe, that individual should not be at risk of criminal liability. That responsibility must lie with the organisation.

--- Later in debate ---

[Stephen McPartland]

I am grateful for the right hon. Gentleman’s point of view.

Clause 23 is primarily aimed at removing the risk and fear of prosecution from individuals within these organisations when undertaking their necessary authorised duties. Sir Alex Younger said:

“Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 14, Q26.]

We have already had a conversation about the difference between theory and practice, and the reality is there is a risk that individual UK IC officers will face criminal sanctions for doing their job. I agree with Sir Alex Younger that that risk should not exist.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

The foreign power condition

[Stuart C. McDonald]

I beg to move amendment 54, in clause 24, page 19, line 5, at end insert—

“(2A) The conduct in question, or a course of conduct of which it forms part, is not to be treated as carried out for or on behalf of a foreign power if financial or other assistance of a foreign power under subsection (2)(c) is provided otherwise than specifically for the conduct or course of conduct.”

This amendment ensures that organisations that receive funding from foreign powers are not guilty of offences if that funding was not for the conduct or course of conduct that would otherwise amount to the offence.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clause 25 stand part.

[Stuart C. McDonald]

We now come to two of the most important concepts in the Bill: the foreign power condition and the meaning of “foreign power.” Proving that the foreign power condition has been met is crucial to establishing many of the serious criminal offences for which we are legislating in this Bill, and all sorts of consequences flow from it in the powers to seize and search. It is vital that we get clauses 24 and 25 absolutely correct.

On the whole, the concepts are broadly in the right area, particularly in clause 24. The concept includes an agent acting on behalf of a foreign power, and with knowledge, or reasonable knowledge, that that is the case. The idea of “ought reasonably to know” being sufficient to make out a connection is perhaps a concern, but I understand why it is required for the legislation to work. I look forward to hearing more from the Minister on the thinking behind it.

To cut to the chase, the Committee will recall that, thanks to a briefing from Article 19 on clause 1, I raised the potential problem that the foreign power condition could be attached to certain unintended groups, and I highlighted two groups in particular: non-governmental organisations that receive some funding from foreign powers for perfectly good and positive reasons, and I gave an example of NGOs that fall within that bracket; and journalists who work for state broadcasters, including in countries that are our very close allies. These two groups are at risk of being caught up in the Bill because the foreign power condition is expressly met when conduct is

“carried out with the financial or other assistance of a foreign power”.

The Minister set out three protections during our consideration of clause 1: the foreign power condition itself; the discretion of the Attorney General; and the public interest test applied by the Crown Prosecution Service. Several members of the Committee spoke about why the AG’s oversight and the CPS’s discretion are insufficient. We had a debate about the chilling effect, a concept that we have just been discussing, and the fact that that would essentially leave NGOs and journalists to make decisions about whether to publish information or not based only on the very vaguest of ideas that the CPS or the AG might come to their rescue. That is not really protection at all.

As for the third protection—the foreign power condition —as far as I recall, the Minister did not dispute or expressly accept that the foreign power condition would be met in these cases. Does the Minister accept that the conduct of those NGOs and journalists could meet the foreign power condition, simply because of what they do? That is the most important question I will ask him in this debate.

Our amendment tries to stop groups being caught up in the provisions of the Bill as a result of simply receiving funding from a foreign power, when that funding has been put to perfectly legitimate and reasonable uses. The amendment requires there to be a connection between the funding and the conduct that is being complained about. For example, if the US State Department funds an NGO for human rights research, completely unrelated conduct, in particular the publication of “protected information”, would not be treated as a foreign power activity or espionage unless it was specifically linked to that funding. I accept that my amendment may not be perfect, and I can see there would be problems with it, but I think there has to be an acceptance that the clause as it stands is not perfect and there has to be protection for NGOs and journalists.

I have another concern about clause 24, particularly subsection (5) and the interaction between subsection (5) and (6). The idea of someone being brought within the ambit of espionage legislation on the basis that their act is motivated by an attempt to benefit a foreign power, even an unknown foreign power, and that is all—none of the other factors in clause 24(2)—seems dangerously liable to be able to attach itself to behaviour to which it should not be attached. Behaviour that is motivated by trying to help people in a foreign country could suddenly take on a new angle and be seen as helping a foreign power.

I will give a final example of what I am trying to get at here, which is basically whistleblowing. What if a person working for an international company here discloses a trade secret of that company to a regulator in an allied country, because the product that that company supplies there is a dangerous breach of that other country’s regulations? It seems to me that the drafting of the foreign power condition confuses whistleblowing with some of the espionage offences. Have we drawn the foreign power condition too broadly?

In relation to clause 25, on Second Reading I wondered whether the definition of foreign power was too narrow and might not cover enough of the damaging actors who engage in some of the behaviours we are so concerned about. However, the key point is that an actor can form part of an indirect relationship between the conduct of the foreign power under clause 26.

I will close my remarks there. Does the Minister accept that some of these examples are caught by the foreign power condition, in particular NGOs, journalists working for a foreign state broadcaster and whistleblowers who reveal a trade secret to a regulator working overseas? Are they caught by the foreign power condition? If so, surely we must change the drafting of the Bill.

[Holly Lynch]

I will speak to clauses 24 and 25 and, having heard the contribution from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, about his amendment 54.

Clause 24 provides for the foreign power condition that is fundamental to almost all the new offences created by the Bill. I appreciate that the Minister has confirmed that we will see the detail of a foreign interference registration scheme before we return to Committee in September, but it will be particularly interesting to see how the provisions in clause 24 interact with a registration scheme, and what an asset that stands to be if it is done properly.

Clause 24(1) provides that the condition is met if a person’s conduct or a course of conduct is carried out for or on behalf of, or with the intention to benefit, a foreign power. In addition, for the condition to be met, the person must know, or reasonably ought to know, that the conduct has that relationship to the foreign power, which I think is clear enough.

Subsection (2) sets out a welcome but non-exhaustive list of different types of relationship between the foreign power and the person engaging in the conduct that would result in a person being considered to be acting for or on behalf of the foreign power.

Under this clause, conduct is deemed to be carried out for or on behalf of a foreign power if it is instigated by a foreign power, it is directed or controlled by a foreign power, it is carried out with financial or other assistance from a foreign power, or it is carried out in collaboration with or with the agreement of a foreign power. It strikes me that thousands of people in the UK could meet all the foreign power stipulations in subsection (2) without ever engaging in any criminality—for example, if they work for a legitimate state-owned company, such as an airline operating out of the UK, or in a foreign embassy. I am keen to see the detail of the registration scheme, so that we have transparency and clear lines about what is welcome and entirely appropriate conduct on behalf of a foreign power and what is not.

Subsection (6) states that is not necessary to identify the particular foreign power that the person intends to benefit. That provision is intended to cover when a person attempts to help a foreign power, but has not yet determined the particular foreign power. I can see how this part of the clause rightly captures the conduct of someone motivated by financial gain, who seeks to sell information or intellectual property to the highest bidder, or perhaps by a desire to cause harm to the UK as a result of a grievance.

For the reasons I have outlined, I imagine that we will come back to clause 24 when debating further parts of the Bill. It would have been advantageous to consider the clause alongside the detail of the foreign influence registration scheme. We will have to undertake that separately, but we recognise that clause 24 is fundamental to this legislation.

Clause 25 defines a foreign power for the purpose of clause 24 and sets out the persons and bodies that comprise a foreign power. We welcome the much-needed update and clarity of what constitutes a foreign power for the functioning of clause 24 and the new offences created by the Bill. I note that the Law Commission’s report, “Protection of Official Data”, made a clear case for replacing “enemy” with “foreign power” and looked to the Canadian Security of Information Act 2001 and the US Congress’s Espionage Statutes Modernisation Bill, which was introduced in 2010, as starting points.

The Official Secrets Act 1911 provides that it is an offence for a person to make or obtain

“any sketch, plan, model, or note”

or

“any secret official code word, or pass word…or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.

The Law Commission felt that as the term had been drafted with enemy states in mind, it was unclear whether a court would construe “enemy” broadly enough to encompass non-state actors, such as an international terrorist group. It was further concerned that the inclusion of the term “enemy” had the potential to inhibit the ability to prosecute those who commit espionage. We have already heard quotes from Sir Alex Younger’s testimony last Thursday. In response to a question about how threats to the UK have changed, he said:

“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q21.]

I therefore welcome the change from enemy to foreign power to ensure that we can secure prosecutions against the right people.

That said, concerns were raised in submissions to the Law Commission’s consultation and I wonder if the Minister can respond to those. Guardian News and Media gave the following example:

“If a journalist obtains information that a nuclear defence installation is unsafe, that concerns have been reported to the appropriate authorities, but have been discounted, and the journalist then proceeds to investigate whether the information is true, they should not be placed at risk of prosecution. Under the existing wording of section 1 OSA, the ‘of use to the enemy’ requirement would it is submitted make such a prosecution unlikely, however if that wording were changed to a foreign power, and a foreign state-owned institution was thinking of bidding to decommission the plant, this could catch the journalist. Such activity by a journalist should not be considered to be espionage.”

Again, it would have been advantageous to consider this clause alongside the foreign influence registration scheme, which will presumably be clear about who needs to register and why, aligned with subsections (1) and (2) of clause 25, but I hope that the Minister can respond to the concerns raised in that example.

--- Later in debate ---

[Stuart C. McDonald]

I just want to repeat that I find that potentially worryingly broad. If somebody does something motivated by the interests of the people of country Z, I worry very much that they could suddenly be treated as if they were benefiting the Government of Z. The foreign power condition would therefore be met and they could be guilty of espionage for whatever act they had undertaken. It just seems incredibly broadly worded. Someone who is simply doing something for the benefit of a people could be caught up in this legislation.

[Stephen McPartland]

I think the intention that we are trying to get across is clear. I understand that the hon. Gentleman has a concern about how broad the scope is, so if he gives me a few moments, I will try to move on to that point.

My view is that clause 24 forms a key concept that will determine the circumstances in which activities will come within the scope of the Bill or beyond it. Amendment 54 seeks to make it explicit that those who receive funding from a foreign power legitimately will not be guilty of an offence under the Bill where that funding is entirely unrelated to the harmful conduct. I want to reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that this reflects the intention of the provision. The provisions are designed to provide that the funding of an organisation must have a sufficient link to the offence in order for the foreign power condition to be met and an offence to be made out; a tangential link will not suffice. To help contextualise that, and reflecting on Tuesday’s debate, I thought it would help to provide a bit more detail on how the foreign power condition interacts with the offences.

Using the offence of obtaining and disclosing protected information as an example, the offence will be made out only if all the limbs of the relevant test are satisfied. This means that a person would commit an offence only if they obtain, disclose or carry out other specified conduct in relation to protected information. That conduct is for a purpose they know, or reasonably ought to know, is for a purpose prejudicial to the safety or interests of the UK, and the foreign power condition is met in relation to that conduct.

I want to be really clear that a person who engages in the harmful conduct above would commit the offence only if they have a purpose prejudiced in relation to that specific conduct. So it is not sufficient to prove that a person has a genuinely prejudicial position against the UK; the conduct has to be carried out with that prejudicial purpose.

The same is true of the foreign power condition. The foreign power condition has been designed to apply in relation to the conduct that is caught within the offence. So where the foreign power is satisfied because the conduct in question, or a course of conduct of which it forms part, is for or on behalf of the foreign power, the defendant must also either actually know or should know that to be the case.

The hon. Member cited the example of an NGO that receives funding from a foreign power. My and the Government’s interpretation is that there would have to be a link between the funding they receive and any activity that they carry out that could meet the offence for that activity to be for or on behalf of the foreign power. So the NGO would also have to know the conduct was linked to this funding, or they should know that it is. They should not be convicted of an offence unless that link was demonstrated beyond reasonable doubt in a court of law.

I want to be really clear. The foreign power condition, as a standalone concept, is not a statement of wrongdoing. So a person can meet the foreign power condition while carrying out wholly legitimate activities. It is an issue only if the foreign power condition is met in relation to harmful conduct specified in the Bill. In the case of a person who obtains or discloses protected information, the offence is designed so that a person would commit the offence only if they had a purpose prejudicial to the safety or interests of the UK and then either knew or ought reasonably to have known that they were acting for or on behalf of the foreign power in relation to that conduct. For example, they had an arrangement with the foreign power under which they would obtain or disclose that protected data, or they intended the foreign power to benefit from obtaining or disclosing of protected data.

So the foreign power condition would not cover a case where a foreign power incidentally benefits from activity. Nor has it been designed to apply in cases where a person receives general funding from a foreign power not linked to the relevant conduct. But clearly it is right that a person can be prosecuted for an offence where all the relevant conditions, including the foreign power condition, are satisfied and can be proven beyond reasonable doubt.

I hope the Committee is reassured that the intention behind our provisions and the hon. Member’s amendments align, but I recognise the importance of ensuring that the legislation clearly gives effect to that intention, and while I do not think the hon. Member’s amendments are the answer, I will consider further whether there is any more that we can do to ensure that this intention is properly reflected in the legislation.

Having set out the conditions under which acts in the Bill will be considered as linked to a foreign power, I now turn to clause 25, which gives meaning to the term “foreign power”. The Bill follows the Law Commission’s recommendation to replace the existing link of “an enemy”, as set out in the Official Secrets Act 1911, with a definition of a foreign power. As we have already debated, the concept of an enemy no longer serves to reflect the modern age. The change from “enemy” to “foreign power” is accompanied by a wider set of changes in the structure of the Bill, such as the foreign power condition itself, which ensures that the Bill’s provisions are appropriately targeted at the harmful activity that we need to combat.

It is important that the legislation captures the various components of a state that could seek to influence or direct harmful activities in or against the UK. As such, a foreign power will include a Head of State acting in his or her public capacity, a foreign Government or parts of the Government, or person exercising such functions, a local government organisation, an agency or authority of a foreign government, part of Government or local government, and a political party that is a governing political party of a foreign Government.

Clause 24, and indeed the Bill as a whole, recognises and respects the unique circumstances and nature of politics in Northern Ireland. Accordingly, clause 25 excludes a political party that is both a governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland from the definition of a “foreign power”. This reflects the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom, and ensures that the provisions in the Bill do not inadvertently impact cross-border politics. The foreign power definition provides the parameters within which persons and bodies will comprise a foreign power for the purposes of the Bill and is a critical part of ensuring that the provisions in the Bill address the right harmful activity.

[Stuart C. McDonald]

I am grateful to the Minister for setting that out. It is particularly helpful to hear his views on the NGO scenario and his explanation of the requirement for some sort of link between the financial arrangements and the specific conduct being complained of. The reason for tabling the amendment is that we did not think that that was necessarily clear enough on the face of the Bill. We will give further thought to whether this aspect needs to be tidied up, so that it is absolutely clear, and I am grateful for his undertaking to look at that as well. I will have to work through some of the other scenarios as well, but it has been helpful to get quite a lot of that on the record. We shall give it some further thought, but in the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 24 and 25 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

National Security Bill (Seventh sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 19th July 2022 Public Bill Committees

[The Chair]

Amendment 48 to clause 27 was debated earlier on, but I understand that its proposer does not wish to press the amendment to a vote. Is that right?

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

indicated assent.

[The Chair]

If people wish to debate the clause, we can do so now.

--- Later in debate ---

[Stuart C. McDonald]

I do not intend to detain the Committee long on this interpretation clause, but I think it might contain a typo, because it states:

“‘foreign power threat activity’ and ‘involvement’, in relation to such activity, have the meaning given by section 27”.

This will be section 27, so that is rather circular. I think it should read “the meaning given by section 26”, because clause 26 defines “foreign power threat activity” and “involvement”. I just wanted to point out that possible typo, which the Minister may want to consider.

[The Chair]

I am sure that the Minister, the Clerks and I are most grateful for that point. I certainly cannot answer it immediately, and the Minister does not look as if he is going to—

--- Later in debate ---

[Stephen McPartland]

The clause provides that where a body commits an offence under part 1 of the Bill

“the officer, as well as the body, is guilty of the offence”

if it is attributable to the officer’s consent, connivance or neglect. The provision is based on a similar one in the Official Secrets Act 1911. For example, where a body commits an espionage offence of obtaining protected information under the direct guidance of the head of the body, both the body and its head would be guilty of the offence. Clause 28 mirrors the provisions found in section 36 in part 3 of the National Security and Investment Act 2021, which makes suitable provision for when an offence under that part is committed by a body corporate.

It is worth noting that in a similar provision in the 1911 Act, a director would automatically be held liable unless they could prove that they did not consent or were unaware. Rightly, the provisions move beyond that burden of proof: the prosecution must now demonstrate beyond reasonable doubt that an officer was culpable in such a case, which provides more safeguards. This is therefore an important provision to ensure that both companies and relevant officers can be held liable for their involvement in state threat activity, and that where there is wrongdoing on the part of an officer of the company that officer can be appropriately prosecuted for the offences.

For an officer to be held liable, they must consent or connive to the act or be negligent in relation to it, which is a higher bar than simply being unaware of the act, as the prosecution would need to demonstrate not just a lack of awareness but that, in being unaware, the person was failing to properly discharge their duties. The clause goes on to define a number of terms, such as a “body” and an “officer of a body”, and it provides that the Secretary of State may make regulations to modify the section in relation to

“its application to a body corporate or unincorporated association formed or recognised under the law of a country or territory outside the United Kingdom.”

That may be required as a result of differences in the nature of bodies corporate, their structures or their terminology under the laws of foreign jurisdictions. This ensures that bodies corporate outside the UK that commit offences under part 1 of the Bill can still be caught under these offences.

I will refer to the example given by the hon. Member for Halifax. We have tried throughout the Bill to demonstrate that the offence will be based on an individual acting directly or indirectly on behalf of a foreign power, and on whether they should reasonably know that that behaviour is on behalf of a foreign power. I understand her point about foreign-owned companies, but the Bill does not say that whole companies are acting on behalf of a foreign power. As she rightly says, there will be a whole range of UK individuals engaged in completely legitimate activity within the UK, and we do not want to give employees of those companies any problems.

The regulations will involve technical, rather than substantial, changes, so they will not widen the scope whatsoever. That is why they will be made under the negative procedure.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Clause 29 ordered to stand part of the Bill.

Clause 30

Consents to prosecutions

[Stuart C. McDonald]

I beg to move amendment 63, in clause 30, page 23, line 16, at end insert—

“(c) in Scotland, only with the consent of the Lord Advocate.”

This amendment would require the consent of the Lord Advocate to prosecute certain offences.

[The Chair]

With this it will be convenient to discuss clause 30 stand part.

[Stuart C. McDonald]

Clause 30 puts in place one of the protections that the Minister has referred to a few times, including when we were debating the offences of disclosure and the breadth of the foreign power condition. The protection in question is the requirement of consent to certain prosecutions, with that consent coming from the Attorney General in England and Wales, and from the Advocate General in Northern Ireland.

Our amendment 63 simply asks why there is no equivalent requirement of consent from the Lord Advocate for prosecutions in Scotland. It might be a conscious choice—if so, it would be useful to hear what the thinking is behind that. It could also be another mistake, because I notice that section 8 of the 1911 Act requires consent to prosecution, but only the Attorney General is mentioned. Section 12, which provides an interpretation, states that the expression “Attorney General” is taken “as respects Scotland” to mean the Lord Advocate, and “as respects Ireland” to mean the Advocate General for Northern Ireland. That is a slightly dated way of doing things, because if we mean the Lord Advocate, we should say that.

On the clause itself, I have absolutely no objection to the idea that consent for prosecution is an appropriate step. As I say, our amendment simply asks what the provision is in relation to Scotland.

[Stephen McPartland]

Let me quickly answer those points. Clause 30 provides that the consent of the Attorney General is required in England and Wales, and that the consent of the Advocate General is required in Northern Ireland. I understand that the Lord Advocate is not included because the Lord Advocate has a constitutional role as the head of the criminal prosecution system under the Criminal Procedures (Scotland) Act 1995, and all prosecutions on indictment are taken by, or on behalf of, the Lord Advocate. It is technically not necessary to include the Lord Advocate, because all offences in relation to Scotland are prosecuted by the Lord Advocate under Scots law, so I ask the hon. Gentleman to withdraw the amendment.

[Stuart C. McDonald]

Very educational; I have learned something new. I am grateful to the Minister for his explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Clause 31

Power to exclude the public from proceedings

Question proposed, That the clause stand part of the Bill.

[Holly Lynch]

I wish only to add that I imagine we would all agree that transparency in this legislative area should be the default, especially given the need to raise awareness of the challenges we face as a country and the individual responsibilities that we all share in combating those challenges with the arrival of these new offences. That said, it is of course right that clause 31 provides power to the court to exclude the public from any part of proceedings or offences under part 1, or for proceedings relating to the aggravation of sentencing, or other offences where the foreign power condition applies, should the evidence being considered deem it to be in the interests of national security to do so.

--- Later in debate ---

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

There have been several reviews of polygraph accuracy, and they are accurate about 80% to 90% of the time. Although they are far from foolproof, they can detect lies, thoughts and intentions to deceive. They are already used in the UK for probation purposes, and their use can encourage people to tell the truth. Along with the other measures in the Bill, they will have their use.

[Stuart C. McDonald]

As the shadow Minister, the hon. Member for Halifax, set out, clause 32 introduces the power to impose STPIMs on an individual via a part 2 notice, and schedule 4 sets out the types of measure that can be imposed.

As I argued on Second Reading, none of us should ever feel comfortable about curtailing people’s liberties via administrative civil orders rather than as punishment for crimes that have been proven through trials. None the less, we acknowledge that such prevention and investigation measures are a necessary and useful part of combating terrorism, and our position on TPIMs has been to focus on trying to clip their wings, improve oversight and limit their invasiveness, rather than to oppose their use altogether.

We think that the balance of evidence shows a similar case for STPIMs. However, we should again be careful in our scrutiny of them, and not permit interference in people’s liberties without proper justification and appropriate limits and oversight. We welcome, for example, that the residence measures in paragraph 1 to schedule 4, which are among the most restrictive measures set out in that schedule, apply only to individuals who are thought to be involved in the most immediately serious activity. Some of the measures are broad, but they seem to be curtailed and properly restricted by the provisions in clause 33—which we will discuss shortly—ensuring that they cannot go beyond what is necessary, although we have some concerns about the various tests that the Secretary of State has to require before applying the measures.

As the Committee has heard, amendment 57 would take out paragraph 12 of schedule 4, on the use of polygraph tests as a means of assessing compliance. Our view is that as polygraph tests remain too unreliable and lack an evidence base, they are inappropriate tools for measuring compliance with STPIMs, especially in the light of the all the other means at the Secretary of State’s disposal, including the monitoring measures in paragraph 15 of schedule 4, as well as the full range of investigatory powers that the services have at their disposal. It is hard to see what paragraph 12 will add. As the shadow Minister said, polygraph tests are not currently used at all.

If there is a case for the use of polygraph tests and the Minister is keen to retain the power to impose such a condition, I ask him to consider removing their applicability in Scotland. There is a precedent for that: polygraphs were introduced for TPIMS in the Counter-Terrorism and Sentencing Act 2021, but during the Act’s passage, the Scottish Government indicated that they would not promote a legislative consent motion for polygraphs on the basis that, because polygraph testing is not currently used at all in the criminal justice system in Scotland, the fundamental change of introducing them should be a matter of principle to be determined by the Scottish Parliament.

The SNP welcomed the decision by the then Justice Secretary, the right hon. and learned Member for South Swindon (Sir Robert Buckland), who is now the Secretary of State for Wales, to remove the provisions on polygraphs that applied to Scotland. Following that concession, a legislative consent motion was eventually approved at Holyrood. If I recall correctly, the Northern Ireland Executive expressed similar concerns. We see no case for polygraphs, but we assume that the Minister does, and if he wishes to retain their inclusion in the Bill, we respectfully ask that he take the same approach as his right hon. and learned Friend by not applying the provisions to Scotland.

[Mr Jones]

I support the measures because they are an extra weapon in the armoury to fight against hostile state intervention in this country. Clearly, the arguments about the level to which the restrictions will be imposed are very complex. There will be cases in which the prosecution test will not be met but we still have evidence about individuals.

My only problem with the measures is in relation to how they will be used practically. As we all know, TPIMs have not exactly been uncontroversial in their prosecution. Will the Minister give us an understanding of how they will be used and in what circumstances? If the evidence is there—and I accept that sometimes that will be difficult, in the sense that a lot of evidence against individuals will be unable to be put in the public domain—when will the measures be used, and for what duration? That would give people some assurance that they will not be used for lengthy periods against individuals. I accept that in a number of cases the evidential test for prosecution will not be met, and therefore the measures may well be a useful tool in the armoury, but we need some oversight of how they will be used and their effectiveness.

On polygraphs, I have some sympathy with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Interestingly, the hon. Member for Hastings and Rye seems to be answering for the Minister; I do not know whether she is auditioning for the job, but I thought it was the Minister who replied to such things.

I think the jury is out, not just in this country but internationally, on the effectiveness of polygraphs. If we are to ensure that they will not be challenged legally, we could put something in the Bill. I am not suggesting for one minute that polygraphs be used on every occasion, but if one is used in a case that is then thrown out because of the unsafeness of the test, that would unfortunately weaken the tool. The Minister has to justify it. As I say, I would be interested to know about the oversight, and how long he envisages their being used.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move amendment 55, in clause 33, page 24, line 6, leave out “reasonably believes” and replace with

“believes on the balance of probabilities”.

This amendment would apply the civil standard of proof in relation to the decision to impose Prevention and Investigation Measures.

[The Chair]

With this it will be convenient to consider clause stand part.

[Stuart C. McDonald]

Clause 33 sets out the conditions that must be met before a part 2 notice, or an STPIM, can be made. In short, the individual must have been involved in new foreign power threat activity so that the measures imposed by the Secretary of State are necessary, and generally a court then has to give permission.

Amendment 55 revives an earlier argument about the standard of proof that the Secretary of State must apply when assessing whether someone has been involved in activity that requires a prevention and investigation measure. The relevant standard in relation to TPIMs has varied over the years. When TPIMs were first introduced, the requirement was “reasonable grounds for suspecting”, but that was then lifted to “the balance of probabilities”. When the Counter-Terrorism and Sentencing Act 2021 was introduced, the Government sought to take it back down to “reasonable grounds for suspecting”. However, during the passage of that Bill, a compromise was reached in the House of Lords and the test was set at “reasonably believes”. My understanding at the time was that the compromise set a standard not as low as “reasonable suspicion” but not as robust as “the balance of probabilities”, and we took the view that the probabilities test operated perfectly well.

Indeed, Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, told the Counter-Terrorism and Sentencing Public Bill Committee:

“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?” ––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q6.]

At that stage, he was happy with “the balance of probabilities”, and not the Government’s original intention to restore the “reasonable suspicion” test. That said, those who accepted that amendment in the House of Lords suggested that the difference between “reasonably believes” and “the balance of probabilities” would be fine, and I acknowledge that far greater legal minds than mine were content with that compromise. Of course, Mr Hall’s clear evidence to this Committee was, slightly to my surprise, that to all intents and purposes the balance of probabilities is the same thing as reasonable belief.

Essentially, this comes down to two questions. First, why not just use the tried and tested terminology of “the balance of probabilities” if it is the same thing as reasonable belief? Secondly, does the Minister agree that basically the two tests are the same? I suppose that is the most important question to ask the Minister arising from this amendment.

--- Later in debate ---

[Stephen McPartland]

Clause 33 mirrors TPIMs, in that it specifies the conditions that must be met in order for the Secretary of State to impose prevention and investigation measures on an individual under an STPIM. Condition A is that the Secretary of State must reasonably believe that the individual is or has been involved in foreign power threat activity. Condition B is that some or all of the foreign power threat activity is new. That ensures that when a notice has expired after the five-year limit provided by clause 34, a further notice may be imposed only where the individual has re-engaged in further foreign powers threat activity since the start of the five-year period.

Conditions C and D outline the two limbs of the necessity test for imposing the measures, so the Secretary of State must reasonably consider, first, that the notice is necessary for protecting the UK from the risk of foreign power threat activity, and secondly, that it is necessary to prevent or restrict the individual’s involvement in foreign power threat activity by imposing the specific measures.

Those two conditions provide an important safeguard that makes it clear not only that must it be necessary in general terms to impose measures on the individual, but that, in addition, each individual measure that is imposed must be necessary in its own right. Condition E requires the Secretary of State to have obtained the court’s permission before imposing measures on an individual. The function and powers of the court on such an application are set out in clause 35.

In urgent cases in which the Secretary of State considers that measures must be imposed immediately, the case must be referred to court for confirmation immediately after measures are imposed. In practice, we expect the emergency power to be used very rarely. The conditions are designed to ensure that STPIMs are used only where they are necessary and proportionate, and they cannot be imposed arbitrarily. There are also several stages at which the courts will be involved in the STPIM process, including granting permission before a notice may be served or confirming one that has been made in an urgent case. The automatic substantive review of the decision to impose the STPIM and all its obligations and a right of appeal against decisions taken in relation to the STPIM provide checks and balances to the decisions taken by the Secretary of State, so I encourage fellow members of the Committee to support the clause.

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the right hon. Member for Dundee East for tabling their amendment. It proposes amending one of the conditions for imposing an STPIM by changing the wording from the Secretary of State “reasonably believes” to

“believes on the balance of probabilities”.

I reassure the hon. Gentleman and the right hon. Gentleman that in the development of the measures consideration was given to the conditions that must be met in such cases. The Government consider reasonable belief of a person’s involvement in foreign power threat activity to be the appropriate test for STPIMs. Foreign state intelligence operatives are highly trained, sophisticated and equipped to obfuscate in relation to their activities and avoid Government security measures. Given that, it is important that the threshold is not too high.

[Stuart C. McDonald]

The Minister appears to be saying that the test is slightly different from the balance of probabilities, but from Jonathan Hall’s evidence, he seemed to think they were pretty much the same. I want to tease out whether the Minister thinks that this test is essentially the same as the balance of probabilities, but with a slightly different formulation, or is it a lower test?

[Stephen McPartland]

I am going to give in to the hon. Member and say I think that the standard of the balance of probabilities test is slightly higher than reasonable belief, but we are dealing with incredibly sophisticated actors who are very highly trained. In this country, reasonable belief is used throughout in relation to war, and we have gone with the reasonable belief definition because of the nature of the people we are dealing with, the nature of the threats to national security and the nature of state threats, but I accept the point the hon. Gentleman is making.

[Stephen McPartland]

As I am a kind and forgiving person, I will answer and say that we have condition B because, throughout the legislation, someone has to have engaged in activity on behalf or in support of a foreign power. That is one of the key tests throughout the Bill, the foreign power test. That is the reason for it.

My view is that “reasonable belief” strikes the right balance, and the threshold mirrors that of TPIMs, which have recently been amended by Parliament in the Counter-Terrorism and Sentencing Act 2021. I ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment.

[Stuart C. McDonald]

I am grateful to the Minister for answering the question. We will give that answer further thought before consideration on Report, but in the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 ordered to stand part of the Bill.

Clause 34

Five year limit for Part 2 notices

[Stuart C. McDonald]

I beg to move amendment 56, in clause 34, page 25, line 12, leave out “four” and insert “two”.

This amendment would mean the Secretary of State could seek to extend a part 2 notice on two occasions rather than four.

[The Chair]

With this it will be convenient to consider clause stand part.

[Stuart C. McDonald]

The clause allows part 2 notices, or STPIMs, to be extended by a year. Not only that but, as drafted, the clause allows for up to four further extensions, thus allowing an STPIM to be in place for five years, even if there has been no new foreign power threat activity.

As we know, these measures can place really significant restrictions on people’s liberty. The ability to extend TPIMs was controversial and only happened after they had been in place for a significant period. The views of the previous Independent Reviewer of Terrorism Legislation, Lord Carlile QC, have been summarised as:

“The TPIM Act 2011 was a balance between on the one hand enabling administrative controls to be imposed outside the criminal process for a significant period of time, and on the other hand ensuring that individuals were not controlled indefinitely on the basis of an assessment that they had once engaged in terrorism-related activity, unless there was evidence that they have done some further act.”

Indeed, the stated purpose of TPIMs when introduced by the 2011 Act was that they were

“targeted, temporary measures and not to be used ‘simply as a means of parking difficult cases indefinitely’”.

The case for and against lifting the two-year cap was considered in detail by another independent reviewer, Lord Anderson, in his report, “Terrorism Prevention and Investigation Measures in 2012”. He observed that it was tempting to wish for longer in the most serious cases, noting:

“The allegations against some subjects are at the highest end of seriousness”.

However, he concluded that the two-year limit was an “acceptable compromise” because, in summary,

“even 2 years was a serious length of time in the life of an individual, and TPIMs should not be allowed to become a shadow alternative to criminal prosecution with their lesser standard of proof…with the possibility of no serious thought being given to how the measures might come to an end.”

It is easy for the Government to say, “Let’s mirror the current TPIM time limit as it is now,” but why should we do that? Those time limits were extended to five years only after about a decade of use of TPIMs. Starting with a five-year time limit appears to be jumping off at the deep end. If we want to mirror TPIMs, we should start off with a much shorter time limit, as happened with TPIMs, and then if, over time, evidence shows that a longer limit is required, we can make that change. But it should be based on evidence about how the orders are operating in practice and not just on saying, “Let’s cut and paste the existing position with TPIMs.”

[Holly Lynch]

I thank the hon. Member for Cumbernauld, Kilsyth and—

--- Later in debate ---

[Stephen McPartland]

I will start with the clause and then deal with the amendment. Clause 34 provides for when a STPIM notice comes into force, how long it will remain in force and how many times it can be extended. It sets a five-year limit in total. Once a notice has been imposed, it remains in force for one year. Unless renewed, it will expire after that time.

If the Secretary of State believes that conditions A, C and D, which we have just discussed, are met, it may be extended for a further year up to four times, taking the total to five years. A further STPIM notice cannot be imposed after this time unless new foreign power threat-related activity is uncovered. I would also like to make it clear that the notice is reviewed every quarter. Those measures ensure that STPIMs cannot be imposed indefinitely, and there are constant safeguards throughout their imposition.

The one-year period and the five-year limit balance the need to protect against threats to the UK from individuals, and allow further extensions to be granted if there continues to be evidence of the risk of involvement in foreign power threat activity. The provisions do not just look back, but recognise the important work that our security services and police would need to carry out both before and after a notice expires. I would therefore appreciate the Committee’s support for the clause.

Amendment 56 relates to the time limits placed on part 2 notices. Like hon. Members, the Government agree that it is important to ensure that individuals are not placed on STPIMs indefinitely. That is why we have included two important time-limit safeguards. The first is that STPIMs can be extended only after a year if the conditions on which they were imposed are still met. In particular, the approach we have taken contains a number of points where positive action is required to keep an STPIM in place. That important safeguard ensures that an STPIM cannot remain in force when it is no longer appropriate.

Secondly, STPIMs can be extended on only four occasions. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked why we had not opted for two occasions, mirroring the original TPIM legislation. That is because of evidence over the last decade from our operational partners about what they feel is appropriate and necessary. We are mirroring their experience with TPIM notices over the last decade, and we will work with them on STPIM notices.

The one-year period and the five-year limit balance the need to protect against further threats. Given the safeguards I have outlined, I ask the hon. Member to consider withdrawing his amendment.

[Stuart C. McDonald]

I am grateful to the Minister, because he did not just say, “Well, we’re just cutting and pasting from TPIMs.” He did provide an explanation of the thinking behind the five-year limit. I will take that away and give it further thought. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

National Security Bill (Eighth sitting)

Stuart C McDonald Excerpts

Committee stage & Committee Debate - 8th sitting
Tuesday 19th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

Clause 35 sets out the function and powers of the court on the application by the Secretary of State to obtain permission from the court before imposing measures on an individual, as required under condition E in clause 33(5).

Subsection (4) provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware of the application or having the opportunity to make representations. That feels to be at odds with the rest of the justice system; however, given the nature of the risks we are attempting to manage and supress with the measures, the clarity in the explanatory note that this is

“to avoid a risk of the individual absconding”

is a sobering reality.

We welcome subsections (7), (8) and (9), which provide powers for the court in various scenarios. Clear tests are set out for the courts in subsection (3)(a), under which the court has to determine whether the Secretary of State’s decisions are “obviously flawed”. That standard is also used in schedule 5, under clause 36.

I sought a legal opinion about “obviously flawed” and, although there is a similar test in schedule 2 of the Counter-Terrorism and Security Act 2015, the sense from lawyers was that “obviously flawed” sets an unusual standard—for example, decision making might be found to be flawed only upon scrutiny, but not obviously so. Will the Minister clarify the standard? Is he in a position to confirm how many times the Secretary of State’s decisions have been deemed to be “obviously flawed”, so that we can consider any learning from that?

Clauses 37 and 38 provide for a directions hearing and a review hearing. Under clause 37(2), on giving the Secretary of State permission to impose measures the court must give directions for a directions hearing. According to subsection (3), those directions must not be served on the individual in a case in which permission has been granted until the part 2 notice has been served.

We will come to the importance of the ongoing review in clauses 39 and 40, which I expect will feed into the processes set out in clause 37. I am reassured that the operability of the whole of part 2 will be considered by an independent reviewer, as outlined in clause 49, in addition to the review hearing and the ongoing assessment of individual circumstances.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

As the shadow Minister says, these clauses put in place some important oversight and a scrutiny mechanism in relation to state threats prevention and investigation measures. On the whole, the oversight and scrutiny mechanisms appear to work, but I have some questions to put to the Minister for clarification.

First, to pick up on a point made by the shadow Minister, why is it the function of the court to determine whether the Secretary of State’s decision was “obviously flawed”? I was slightly surprised by that standard and not familiar with it at all. What is the difference between an “obviously flawed” decision and one that is merely “flawed”? Is not the simple requirement in clause 35(6) to apply judicial review principles in itself sufficient to let the court know what it is supposed to do?

Secondly, clause 35(4) allows the court to have its hearing on the Secretary of State’s application “in the absence of” the relevant individual and even without that person being notified of that happening. I can well understand that there will be some reasons why that may appear to be necessary, but the Bill does not provide any guidance at all to the courts as to when it would or would not be appropriate to proceed in that way. That struck me as quite a strange way to do things. It just says that the court may consider the application

“in the absence of the individual”,

without providing any guidance as to when that would be appropriate and the reasons the court should have for doing that.

That question is even more pertinent when the court hears an urgent case under schedule 5, which says that the Secretary of State must serve the part 2 notice on the individual and then, immediately after, refer the measures to the court. Given that the part 2 notice has been served on the individual and is enforced because of urgency, it seems strange that there would be justification for the court to consider the reference under the part 2 notice without the individual being present or even aware of the hearing. The individual will have been served the notice, so why does the hearing then need to proceed without them even being aware of it? Why would that power be necessary?

Finally, on the review hearing, clause 38(3) gives the court a broad power to simply

“discontinue the review hearing in any other circumstances.”

There is not much in the Bill that sets out why the court might want to do that and what factors would prompt a court to behave in that way. When is it envisaged that that would be necessary and why is there no more detail about that in the Bill?

[The Minister for Security (Stephen McPartland)]

I will respond to the questions as I go through my speech. I am always happy to take interventions.

Clause 35 mirrors the terrorism prevention and investigation measures and sets out the function and powers of the court on an application by the Secretary of State to obtain permission before imposing measures on an individual, as required under condition E of clause 33. The clause means that the court must apply judicial review principles and consider

“whether the relevant decisions of the Secretary of State are obviously flawed”.

The hon. Member for Halifax asked how many times decisions have been considered “obviously flawed” by the court and the answer is never; hopefully that gives some reassurance.

The Secretary of State will put the draft part 2 notice before the court. If the court considers that the decisions that conditions A, B or C are met were obviously flawed, it may not give permission to impose the notice. If the court considers that the decisions relating to condition D were obviously flawed, the court can give directions to the Secretary of State on the specific measures while otherwise permitting the notice to be imposed—again, there are more safeguards.

The court may assess the Secretary of State’s application without the potential subject of the measures being aware. That is important because, as the hon. Member for Halifax made clear, it prevents the individual from receiving notice that the measure could be imposed on them and obviously stops them running away and absconding.

Once the measures are imposed, the subject will of course have the right to an automatic full review by the High Court where the individual will be present and have legal representation. For any closed proceedings in the review hearing, there will be a special advocate to act in the subject’s interest. I have checked that the special advocate cost will be met by the Home Office for both parties. The review hearing is where the court will apply a high level of scrutiny to the Secretary of State’s decisions. The Government feel it is right that, rather than at the initial stage of obtaining court permission, the full scrutiny takes place at the second stage of court review, after the individual has had an opportunity to seek legal advice. We will come on to that in more detail.

Clause 36 gives effect to schedule 5, which makes provision for urgent cases in which the Secretary of State may, under clause 33(5)(b), impose measures on an individual without first obtaining the permission of the court. This provision has long-standing precedents: there are similar provisions relating to TPIMs in the Terrorism Prevention and Investigation Measures Act 2011 and to control orders in the Prevention of Terrorism Act 2005.

This urgent and exceptional power has never been used since the TPIMs regime was introduced. In all cases, it has been possible to obtain court permission in advance, and that will always be the preferred option. We do not expect the regime in this Bill to operate any differently. We have tried to put in place safeguards throughout the whole Bill. As I have said, the STPIMS are a last resort and it is all about trying to find other ways to prosecute.

As we know, the power will be used in rare and exceptional cases when there is an operational need to avoid any delay in taking measures that are considered necessary to protect the UK from a foreign power, threat or activity. We will come to oversight in later deliberations on this part of the Bill. To help the hon. Member for Halifax, I will say that I absolutely expect the person appointed to review the operation of this part to comment on the appropriateness of any use of the urgency process. I hope that provides reassurance.

Clause 37 ensures that there is timely and clear progress towards a full High Court review. The basis of the clause is, in essence, to ensure that in each case, when measures are imposed, a prompt and clear timeline is put in place, with the steps that need to be taken towards the subsequent full High Court review. The directions hearing must take place within seven days of a part 2 notice being served on the individual or, in an urgent case, within seven days of the notice being confirmed. Directions must then be set for a full review hearing to take place as soon as possible. The proceedings leading up to the full review hearing will be agreed by all parties.

The clause is not about the court considering the restrictions or the nature of the evidence; it is there more to ensure the speedy process of the approach to the full hearing. It is important that the hearing takes place speedily within that seven-day period, so that there is a direction of travel to ensure that subsequent oversight is well prescribed.

On clause 38, the involvement of the court is an important safeguard for the rights of the individual subject to the measures, and full judicial oversight of the process of imposing measures is key. As I alluded to earlier, clause 38 provides for a full High Court review to take place automatically in every single case in which state threat prevention and investigation measures are imposed. This will happen automatically, with no need for the individual to initiate the proceedings, in each case in which measures are imposed, subject only to the provisions that allow the discontinuance of proceedings included in subsection (3)—for example, if the person does not want the review to take place. Only the individual or court may make the decision to discontinue the proceedings, and the individual will always be able to make representations in respect of a proposal to discontinue.

At the full review, the function of the court is to review the decisions of the Secretary of State that conditions A, B, C and D were met at the time she made the decision and continue to be met at the time of the review. To remind the Committee, the decisions are that they reasonably believe the individual is or has been involved in foreign power threat activity; that some or all of that activity is new foreign power threat activity; that they reasonably consider that the imposition of STPIMs is necessary to protect the UK from the risk of action that constitutes foreign power threat activity; and finally, that they reasonably consider that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity, for the specified measures to be imposed on the individual.

Clause 38 requires the courts to apply the principles that are applicable on an application for judicial review. As Committee members will be aware, the courts take the view that judicial review is a flexible tool that allows for differing degrees of intensity of scrutiny, depending on the circumstances and the impact of the decision in question on the individual concerned.

As well as setting out the functions of the court in a review, clause 38 sets out the powers available to the court, which may overturn the Secretary of State’s decisions in their entirety if it finds that they were unlawful. If the court finds that it was necessary to impose measures but one or more of the measures imposed was unlawful, the Bill is clear that the court may quash the particular measures or direct that they be varied, while also directing that the rest of the notice comes into force. That will provide a balance between being able to protect the UK and ensuring that the measures imposed represent the minimum necessary interference with the rights of the individual.

In addition to the function and powers of the court, clause 38 also makes provision for circumstances in which the review may be discontinued. The court must discontinue the review if the individual requests it—for example, if they do not wish to challenge the case against them. However, as a further safeguard, the Bill specifies that before the court may discontinue proceedings under the power the individual subject to the measures and the Secretary of State must have the opportunity to make representations.

It is imperative that the correct checks and balances are in place to govern the operation of STPIMs, and the Government consider that clause 38, together with other provisions in the Bill that provide the requirement for court permission before the imposition of measures and subsequent rights of appeal, will deliver rigorous end-to-end judicial oversight of the decisions taken by the Secretary of State in the exercise of her powers. The continuous involvement of the court will provide a key, important safeguard for the rights of the individual subject to the measures.

In summary, clauses 35, 36, 37 and 38 are exceptionally important for the Bill and I urge the Committee to support them.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 37 and 38 ordered to stand part of the Bill.

Clause 39

Criminal investigations into foreign power threat activity

Question proposed, That the clause stand part of the Bill.

National Security Bill (Thirteenth sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is always a pleasure to serve under your chairmanship, Mr Gray. I also welcome hon. Members back to the final day of the Committee. We welcome new schedules 1, 2 and 3, and hope that they will reflect the complex and evolving nature of state threats, and the significant technical and financial resources that provide the capability for sustained hostile activity.

For too long, our police and security services have had to use blunted tools in this regard, not designed to address adequately the challenges posed by modern day espionage. We are grateful to Counter Terrorism Policing for submitting written evidence to the Committee, and making its support for the new schedules 1, 2 and 3 very clear. Frankly, the Met provided far more in its written evidence on the rationale of these provisions than the explanatory notes accompanying the new schedules from the Government—a point made by my right hon. Friend the Member for North Durham.

The fairly non-existent explanatory notes are a constant challenge from this part of the Bill onwards, affecting later amendments, which is disappointing for all hon. Members trying to follow the detail closely. As the Minister said, Assistant Commissioner Matt Jukes said in his written evidence to the Committee:

“We have requested financial investigation powers to support our investigations in this space. To this end we have articulated a clear requirement to emulate various investigatory powers within the Terrorism Act which centre on financial investigations as well as examination of material which can be used for investigatory purposes. We are assured that these will be introduced by way of a forthcoming amendment. If so, this will further ensure that we have the tools required to successfully investigate and disrupt state threat activity.”

We welcome the new schedules, and now that the long overdue Economic Crime and Corporate Transparency Bill has been published, no doubt the new schedules are intended to work alongside some of the part 5 provisions in that legislation. Currently, terrorism disclosure orders can be made under schedule 5A of the Terrorism Act 2000. Counter Terrorism Policing has called for an explicit disclosure order for state threats, stating that it will help investigators benefit from a streamlined process, whereby one order is available to cover separate requests for information from multiple organisations, without the need to return to court. I want to push the Minister on oversight. I have made the case for an independent reviewer of all the new measures in the Bill. As those will be investigatory powers, will the Minister confirm that the investigatory powers commissioner will have responsibility for overseeing their use?

Turning to paragraphs 7 and 17 of new schedule 1, paragraph 7 outlines offences in relation to disclosure orders. Sub-paragraph (3) states that a person commits an offence if

“in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.”

By comparison, paragraph 17(1) states that a

“statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.”

I cannot quite square that off. I am keen to better understand why the information provided by a person under a disclosure order could not be used as evidence in criminal proceedings.

Before concluding, as I have said before, I accept that it is standard to refer to a police officer as “constable” in legislation, despite the fact that in doing so we are referring to police officers of any rank, not the rank of constable, which seems problematic. New schedule 1 is a prime example of where it gets messy. Paragraph 1(5) says that an appropriate officer for the purposes of these powers is either a constable or a National Crime Agency officer. It is not until paragraph 2(10) that the provision states that an appropriate officer must be a senior officer or authorised by a senior officer. Not until paragraph 9(4) does it confirm that “senior officer” must be a superintendent or above. Would it not be clearer to be explicit about the stipulated rank required to exercise certain powers at the earliest opportunity, instead of allowing for the ambiguity of the word “constable”? The last thing any of us want is for any ambiguity to be exploited by defence lawyers in the courts.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Gray. My apologies for missing the previous Committee sitting. I can now welcome the Minister to his place at this very interesting and challenging time. I do not doubt that we wish him well. We have a tricky job in Committee today. We are looking at fairly substantial new schedules and new clauses for the first time. It would be helpful to hear what the Minister has to say about them. On the whole, we are supportive of most of what we will be discussing today, but we will have to take away what the Minister says and consider it further. Ultimately, we reserve our position until the Bill reaches its final stages in the House of Commons.

The Minister has outlined a number of case studies and scenarios to illustrate how this new clause and new schedule would work. More of that information would be really helpful to understand what the Government are getting at. With that proviso in mind, we would say that new schedule 1 seems to provide the necessary powers to investigate foreign threat activity. The Minister referenced the fact that this was based on other provisions, which is interesting to know, but I two have two or three questions about precisely what statute and provisions these measures are modelled on. Some of them seem fairly unusual, so it would be useful to know where else they can be found in order to analyse how they work there.

The Minister provided some examples of how the new clause and schedule would work. The first question is how is it to be decided that property is

“likely to be used for the purposes of foreign power threat activity”

or proceeds of that? Is that essential analysis to be based on the nature of the property, or is more required, such as intelligence about who may have had ownership or possession or some other link to it? Again, the illustrations which the Minister gave during his introductory speech may answer that question. I will have to go away and have a think about that, but the more illustrations we can have, the better. Otherwise, his scheme seems pretty reasonable.

I have a couple of questions about some of the supplementary provisions. Is there not an issue with being able to ask questions that could lead to self-incriminating answers? I think the shadow Minister almost had the opposite concern from me. She asked why that would be protected from use in a criminal trial. My question is about whether the safeguard goes far enough. The Government are basically saying that someone can be asked a question that may lead to a self-incriminating answer. There are protections elsewhere in paragraphs 8 and 17 of the new schedule about the non-use of those statements, but is this formulation used in other legislation? It would be useful to have a specific reference to a provision in another Act of Parliament.

In a similar vein, what is the thinking around ensuring that disclosure orders have effect, despite restrictions in another enactment? That seems a very broad provision. Again, is that found elsewhere in another piece of legislation? What other Acts of Parliament are going to be impacted or undermined by this? Finally, part 2 includes the provisions in relation to Scotland and how these would be put into practice. I wanted to check that there has been consultation with the Scottish Government. The broad thrust of new schedule 1 seems fine, but there are one or two questions for the Minister.

--- Later in debate ---

[Holly Lynch]

New clause 9 and new schedule 2 establish customer information orders, which authorise the police and NCA officers to obtain customer information from financial institutions. In its written submission to the Committee, for which we are all grateful, Counter Terrorism Policing has welcomed the provision, stating that it will

“enable investigators to identify accounts in relation to state threat investigations, or where an individual is using a covert account under a false identity to receive funds to use for the purposes of state threats.”

As the Minister outlined, the tool has been available to law enforcement for terrorism investigations thanks to schedule 6 to the Terrorism Act 2000, and it has been available for criminal investigations through the Proceeds of Crime Act. However, according to Counter Terrorism Policing, it has not been possible to use either Act in relation to state threats investigations, so we welcome the provision. It prompts the question of why we have not addressed this issue sooner.

Subsection (2) states that the judge may grant the order if they are satisfied that

“the order is sought for the purposes of an investigation into foreign power activity”,

and that

“the order will enhance the effectiveness of the investigation.”

We have spoken a lot about the value of an independent reviewer, and I welcome the substance of the Minister’s comments. It is worth keeping under review the threshold of a judge being satisfied that the order is sought for the purposes of investigation into foreign power activity. We cannot use these orders without good cause, but if we need them to be able to find evidence of foreign power activity, will investigators be able to satisfy a judge prior to that? It will be interesting to see how many applications are granted and rejected once we start to work with the orders. Aside from those points, I am happy with new schedule 2.

[Stuart C. McDonald]

I will make a couple of brief points. The broad thrust of the new schedule and the intention behind it seem absolutely fine, but I am interested in the tests that must be satisfied before an order is made. Under the previous schedule on disclosure orders, the judge has to be satisfied that there are reasonable grounds for suspicion, that there is substantial value in the information gained under the order and that the order would be in the public interest.

In contrast, here in new schedule 2, the judge has to be satisfied only that the order is sought for the purposes of an investigation and that it will enhance the effectiveness of that investigation. That seems a pretty low bar to allowing this pretty invasive procedure to be gone through. Why that choice of language? I guess it is modelled on the provisions that have been mentioned. I have probably not been as diligent as the shadow Minister has in doing my homework and tracking through the previous bits of legislation, and I will now do that. The information gained under these orders could be pretty intrusive, so we need to ensure we are not giving carte blanche to all sorts of intrusive investigations. I am a little bit concerned about the low level of test, compared with the test for disclosure orders.

My second, brief point is that paragraph 4 of the new schedule suggests that the person whose records are about to be trawled through can seek to vary or discharge the order. It is not clear to me how they would go about doing that, given that I suspect most orders will be made without any notice, and they can even be made by a judge in chambers. What assurance can we have that people will be able to challenge this potentially intrusive investigation?

[Tom Tugendhat]

The question as to why we have not addressed this sooner is a fair one. The UK’s investigation legislation is complex, as the hon. Member for Halifax knows only too well from the homework she has obviously done for our sittings. For example, in the Proceeds of Crime Act there are more than seven investigatory orders used in criminal and civil investigations. The consideration that has gone into this has naturally been complex, and it has required a lot of time and input. This Bill, as she knows very well, has been some years—and, indeed, some Ministers—in the making.

--- Later in debate ---

[Tom Tugendhat]

Let me be completely clear, because subsection (8) makes it completely clear: there is no requirement for a foreign power itself to register. We cannot compel foreign powers or entities to register; this is a compulsion on UK entities or individuals.

The scheme intends to increase assurance and transparency to activities being carried out for a foreign power, where the involvement of that foreign power might otherwise not be apparent. As such, we would not expect other Governments to register with the scheme in respect of activity that they themselves are undertaking. As the later “interpretation” clause will make clear, that includes any person acting in the capacity of an office holder, employee or other member of staff of the foreign power, or a person whom the Secretary of State reasonably considers to be exercising such functions.

This scheme has been designed to avoid interference with our obligations under international law regarding the diplomatic and consular relations between countries, as well as the need to protect routine Government-to-Government engagement—the official visits of officials, military and other agencies of a state, for example.

Secondly, subsection (2) sets out the definition of “arrangement”, which requires there to be direction from a specified foreign power or entity to a person. That element of direction is important because it envisages a power relationship between the specified foreign power or entity and the person. The specified foreign power or entity has told the person to carry out the activity, or arranged for it to be carried out. While in practice it is entirely likely for a direction to be delivered in the language of a request, the context of the relationship between the specified foreign power or entity and the person being directed will ultimately determine whether it falls within scope.

[Stuart C. McDonald]

What happens if an intermediary is involved? What if a designated state power says to someone locally, “You arrange for these activities”, rather than saying to someone in the United Kingdom, “I want you to undertake these activities”? That falls within the terms of the new clause. That intermediary then instructs people in the United Kingdom to undertake activities. Does that not mean there is a gap in the clause and that people in the UK undertaking those activities would not have to register anything? It would be almost impossible to enforce against that intermediary requirement to register. Is there not a potential problem there?

[Tom Tugendhat]

My understanding is that—in fact, I will come back to that when I sum up, because the hon. Gentleman has raised an interesting point.

We consider a power relationship to include, for example, where the specified foreign power or entity has formally contracted a person’s support for an activity, or where it is paying a person to deliver a service. It could also include a situation where a specified entity is making a request of its subsidiary—again, the direction might be in the language of a request, but the power relationship would make it a direction. Where such formal structures are not established, a direction should include where a person is requested to act, but through the promise of compensation or coercion—for example, future payment, benefit or favourable treatment.

To be clear, though, it would not be enough for a specified foreign power or entity to simply provide funding in support of an activity—through subsidy or donation, for example. Nor could a generic request from a specified foreign power or entity be considered a “direction”—a request made through a public communication to a large distribution or mailing list, for example.

A power relationship, whether formal or informal, is necessary to ensure that unilateral activity on the part of the person is not within scope and nor is activity that is part of a collaboration and absent a power relationship. We shall set out in guidance what we intend by a direction so that it is clear to the public and to the courts what arrangements are registrable.

An arrangement also captures where a person is to arrange for activity to be carried out at the direction of a specified foreign power or entity, as well as where the person is to carry out the activity themselves. That is to ensure that a person in a direct arrangement with a specified foreign power or entity cannot avoid registration by simply contracting out the activity to a third party, creating a degree of separation between the specified foreign power or entity and the ultimate person who will carry out the activity.

Thirdly, I turn to the definition of “control”, where a specified entity is said to be subject to foreign power control. It is important that we capture the commonly used practice of foreign powers channelling state threat activity through private entities. To capture this effectively we have defined “control” under subsection (5) as being where a foreign power holds, be it directly or indirectly, more than 25% of the shares or voting rights of the entity, or the foreign power can appoint or remove officers of the entity.

Control can also be demonstrated where the foreign power has the right to direct or control the entity’s activities, allowing the Secretary of State flexibility if foreign powers exercise other significant forms of control that fall below those thresholds. The more than 25% threshold is in line with existing legislation on substantial control over an entity.

--- Later in debate ---

That is why we need clarity on when an arrangement is registered—to prevent anyone from inadvertently committing an offence under new clause 12 and to ensure that legitimate arrangements are not stuck in limbo forever, unable to progress because of delays and backlogs in the Home Office, despite, I am sure, the best efforts of civil servants. I think it is the minimum we can expect from the Committee process to understand from the Minister exactly when a scheme is registered under these proposals.

[Stuart C. McDonald]

We are now turning to some of the most important provisions in the Bill. I do not think anybody here would argue that we do not need some sort of foreign influence registration scheme. The question for us today is, is this the right scheme? This debate gives us a lot of food for thought, and we will have to go away and think about it further. We have had the benefit of some very useful meetings with officials, for which I am extremely grateful.

I understand the thinking behind the two-tier system, with a broad primary political tier followed by a narrower but all-encompassing enhanced one. Obviously, the Minister is right about political transparency being essential and something we all support. It is the enhanced tier and how it would operate that challenges Members slightly more. Designating states or organisations for the enhanced tier will clearly be an incredibly serious issue, with profound implications for everyone impacted, as well as the diplomatic challenges highlighted by Members.

Many of the questions raised are ones that I would have asked, so for the moment I want to focus on the question I posed in my intervention, which is about precisely how this would work in circumstances where there are various intermediaries. Again, the hon. Member for Halifax made a very valid point: this could be helped by real-world case studies and examples, otherwise we are just using our imagination to try to come up with examples of how this will apply in practice, and my imagination is probably not up to the task. However, I will try to give a fairly mundane example of where this legislation might have implications.

A specified Government or institution in country X decides that they want a sympathetic professor or tech boss in the UK to try to corral some experts in a particular industry into an association or team, with the purpose of providing regular updates on developments in said industry in the United Kingdom. They might have longer-term goals for how they could use that information and these people. That seems exactly the type of situation that the clause is aimed at. At the stage that the professor or tech boss is tasked with putting together this team on behalf of Government X, he is under an obligation to register that arrangement, as I understand it. That then enables people to keep an eye on that activity, if it is thought necessary, in an attempt to stop anything untoward happening before it is too late. If he does not register, that obviously raises a big red flag, perhaps if the security services are aware of some of his other activities.

That all seems pretty straightforward. The problem is what happens if that professor or tech boss is not situated in the United Kingdom but is in country X? There seems little prospect of enforcing these rules against him in country X if he does not register the arrangement. If I have interpreted it correctly, the new clause does not put any obligation on the people in the UK who are undertaking the activity to register the arrangement. That seems to be a potential gap, because that seems a far more likely scenario than a simple instruction straight from a specified Government or company to people in the United Kingdom saying, “You do this”. There will always be intermediaries involved, and that potentially sets up a problem.

I appreciate that there will be issues with what the state of knowledge of the persons in the UK who are doing this via the intermediary might be. Other parts of the Bill, including new clause 11 itself, refer to a person who

“knows, or ought reasonably to know”.

That formulation might be used to fill the gap—if I have interpreted the measures correctly and there is a gap. Basically, my point is that if persons further down the line know full well that they will be asked to do activities for Government X—albeit via an intermediary—perhaps that obligation should be placed on them.

It is not clear how the criteria specified in new clause 12 would amount to an offence. Clearly, the intermediary would be committing an offence for arranging various activities without having registered them, but they are away in country X, so there is no chance of our enforcing the law against him or her. Are industry experts in the UK who have been corralled into the organisation by that intermediary committing an offence by undertaking activities that the intermediary has not registered? That comes down to the question of whether they are acting

“pursuant to a foreign activity arrangement”,

but it is not clear that they are. A little more clarity on that would be useful. Would it depend, for example, on their state of knowledge?

The Minister suggested that new clause 13 could close a gap, but it does not apply to Governments for a start, so it does not fill the hole that we are talking about. If it is not a Government who have been specified but another company, there are questions about whether that company would bother to comply with the measures and about how the measures would be enforced anyway.

More profound concerns about the enhanced tier, including the diplomatic issues and what impacts the measures might have on research and collaboration, have been raised by organisations such as Universities UK. The Government may well say, “That’s something we have to weigh in the balance, and if it is required for the security of the United Kingdom, tough—so be it.” However, there is provision for regulations to tailor precisely the list of activities that could be exempted on a country-by-country basis, and I would be interested to know the Government’s thinking on that.

What will be the process leading up to a decision to take this very serious step of designating either a foreign Government or another institution? I guess that there would have to be significant consultation about that—or would there? Would the list of activities that have to be registered be tailored depending on the country, or will the list be for everything?

National Security Bill (Fourteenth sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Holly Lynch]

My hon. Friend is absolutely right. We thought that that was quite an aspiration at the time, but now it is looking even more unlikely. I just make the point to the Minister that that needs consideration to make sure we do not lose the definitions, or something more substantial under Government amendment 9.

Government new clause 15 defines “political influence activity” for the purposes of the new registration scheme. Members will be aware of the Security Service interference alert sent from MI5 to MPs and peers back in January regarding Christine Lee. The alert stated that Lee knowingly engaged in political interference activities on behalf of the United Front Work Department of the Chinese Communist party. The warning read that the UFWD was seeking to covertly interfere in UK politics by establishing links with established and aspiring parliamentarians across the political spectrum and cultivating relationships with influential figures. Can the Minister confirm that such conduct would need to be registered under these new clauses?

Proposed new subsection 3(a) states that

“the conduct of an election or referendum in the United Kingdom”

falls under the criteria of political influence activity. This is a welcome inclusion and reflects the evidence provided to the Committee by several of the expert witnesses we heard from at the start, which feels like a lifetime ago—it was certainly four Chancellors ago! One of the expert witnesses was former deputy national security adviser Paddy McGuinness. He stated,

“Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and…that there is bright transparency so we know who is doing what.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q48.]

We welcome the fact that the registration scheme will go some way toward addressing these concerns, but I want to again make the case for new clause 3, because the Minister was not here for that debate. His predecessor gave us a commitment to look further at it. Alongside this new clause, new clause 3 would provide for an annual review on disinformation, with particular consideration of interference in elections. That would help with the transparency and awareness piece that needs to sit alongside the provisions. In a similar spirit, we want to tighten Government new clause 15 with our new clause 29 on the registration of former members of intelligence services, and with new clause 5 on ministerial conduct when meeting with representatives of foreign intelligence services. We will come to those.

I would be grateful for clarity on when we can expect the new clauses to come into effect, as we are hearing that it might be some time. Will we seek to backdate them to capture political influence activity already in motion? I think I heard the Minister say that he could not yet say when the measures would come into effect, and essentially the Government would not be rushed on that matter. I asked the relevant agencies the same question, and the working assumption seems to be that we will not backdate the requirements. I ask the Minister to consider looking at that again. Surely we stand to miss much political influence activity that is already under way—not even necessarily activity that has started and come to an end, but conduct that may have started some time ago. We would create a loophole whereby people could claim, as a cover for failing to register, that the activity predated the introduction of the scheme, whether or not it actually did, and could thus commit an offence under new clause 16.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I do not want to repeat anything the shadow Minister said, but I have a couple of short points. I am supportive of the goal of the political tier, though I am somewhat struggling with the design of the scheme. In debate on new clause 11, I asked questions about how the provisions would apply when intermediaries were used. It would be useful if the Minister could write on that, as I do not think we got an answer to that in his summing-up speech. The same concerns arise here. We have a lot of information to go away and take on board, but I am struggling to understand how these measures will apply in all sorts of situations. Lots of case examples will be essential if we are to get to the bottom of how this is going to work.

A simple example would be a case where an international NGO incorporated in another European country had a sister NGO in the United Kingdom. Both have employees of their own, some here and some in Europe. Both have Members, some here and some in Europe. How do all these provisions and this scheme apply to them if they have a month of action? An international NGO may take part in some direct engagement, so it would have to register that. What if it encourages its sister NGO to do that? What if either of them contact their members? The Minister has reassured us that employees would not have to register anything individually. It is not absolutely clear which part of the Bill makes that clear; it would be useful to know that.

I presume, as well, that members who are urged by an international NGO to email their MPs will not have to register any sort of activity like that. Again, it would be useful to know precisely where that is made clear in the Bill. Although I dare say we would all be quite happy not to have quite so many emails prompted by NGOs, equally, I do not think any of us would want them to have to register their schemes under the Bill. It would really be useful if we could get a handle on how the legislation will apply to these typical sorts of situations.

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[Tom Tugendhat]

If the right hon. Gentleman will forgive me, I will come to that in a moment.

New clause 20 provides the Secretary of State with the ability to give a notice to a person who has registered with FIRS, or who should have registered with FIRS but has not. On receipt of an information notice, the person will be required to provide the information requested within the specified timeframe. Failure do so without a reasonable excuse will be an offence. Receiving an information notice does not mean that an individual is guilty of a FIRS offence or that they are engaged in wrongdoing. It is, fundamentally, a tool to provide reassurance that individuals are meeting their registration requirements.

[Stuart C. McDonald]

I have a question about the new clause, and it may save the Minister from having to make a speech. With power, unlike with other notice powers, there seems to be virtually no limit on the nature of information that can be requested. There is no judicial oversight or right to challenge. It seems to be an incredibly broadly drafted power, and I do not understand why.

[Tom Tugendhat]

The hon. Member for Halifax has raised the question of oversight on various occasions and I have already committed to discussing it with her, so I will come back to that point. As for the nature of the information required, that will depend on the nature of the business. It is broad, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East correctly identified.

Where a person is suspected of committing a FIRS offence, the information gathered as a result of these notices can be used to support the investigation and prosecution of a FIRS offence. New clause 21 makes provisions clarifying that a person does not have to disclose any information that is protected by legal professional privilege or confidential journalistic material, or that would require them to identify or confirm a source of journalistic information.

Legal professional privilege, commonly referred to as LPP, or as confidentiality of communications in Scotland, is a fundamental tenet of UK law and protects those seeking legal advice and representation in the UK. It ensures that material such as communications between clients and their lawyers—and, in some circumstances, third parties—is protected from disclosure. LPP does not arise where a lawyer’s assistance has been sought to further a crime or fraud. Any disclosure requirement in FIRS that could have the effect of breaching LPP would fundamentally infringe the rights of individuals to receive confidential legal advice, where that advice is not for the purposes of enabling a crime, and their rights to a fair hearing.

There is also legal precedent for protecting against the disclosure of confidential journalistic material or sources of journalistic information, unless the power to require disclosure has been subject to prior or immediate after-the-event judicial or other independent or impartial scrutiny. The Government consider that protections for such material should also be included in FIRS to ensure adequate protections for journalists and their sources. The protections will apply even if a journalist or a recognised news publisher has to register under the enhanced tier of the scheme. The Government propose this new clause to ensure that FIRS upholds the rule of law and fair access to justice. It will ensure that there is adequate protection for confidential journalistic material and information related to journalistic sources.

New clause 25 allows the Secretary of State to make regulations about the publication or copying of information provided through registration. The ability to publicise certain information registered with the scheme is vital to delivering the aims of FIRS, by ensuring that the influence of foreign powers and entities is open and transparent. We intend to publish information registered under the primary or enhanced requirements that relates to the carrying out of political influence activities. The regulation-making powers also provide the flexibility to publish information registered about a wider range of activity under the enhanced requirements.

As I said earlier, however, that is to be determined alongside the decision to specify a foreign power or entity subject to a foreign power or control. Ensuring information can be publicised where it relates to the carrying out of political influence activities will help to strengthen the resilience of the UK political system against covert foreign influence. After all, sunlight is the best disinfectant. Not only will this ensure that the UK public are better informed of the scale and extent of foreign influence in our political affairs, but it will put a person actively seeking to avoid being transparent in a difficult position. Either they comply with the scheme’s requirements and expose their arrangements or activities, or they face potential enforcement action.

The information published will be limited to what is necessary to achieve the transparency aims of the scheme: for example, the name of the registrant, which could be an individual or an entity; the foreign power or principal for which political influence activities are to be carried out; or the nature and duration of such activity. Subsection (2) would allow the Secretary of State to specify or describe information or material that is not to be published. That is likely to include a situation where publishing the information would threaten the interests of national security, put an individual’s safety at risk or risk disclosure of commercially sensitive information.

Subsection (1)(b) would allow the Secretary of State to make provision for the copying of information provided through registration. It an important provision that will ensure data can be managed by the scheme management unit and shared with other enforcement agencies when necessary. As already mentioned, data will be managed in accordance with the Data Protection Act 2018 and GDPR. As with other parts of the registration scheme, we consider it appropriate for this level of detail to be outlined through regulations, which will also provide the Government with the flexibility to adapt should there be a need to make changes to what information is to be provided in order to meet the objectives of the scheme.

New clause 28 provides the definitions relevant to the registration scheme requirements. As we have discussed these terms in detail in relation to the requirements to which they apply, I do not consider that further examination is needed.

In my opening remarks, I explained that any arrangement with the Republic of Ireland or with a body incorporated or association under the laws of Ireland will be exempt from registration, as are activities to be carried out by such entities. This, again, ensures that the letter and spirit of the Belfast/Good Friday accord are protected, by avoiding interference with the right of citizens in Northern Ireland to identify as Irish. To achieve that in the drafting, subsection (2) clarifies that the Republic of Ireland is not to be considered a foreign power for the purposes of FIRS.

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[Holly Lynch]

There is an awful lot in this group that is still to be determined in regulations, which is always a shame because it does not allow for the same scrutiny as when we consider everything as a package.

Government new clause 18 creates exemptions to the registration requirements laid out in the previous clauses. There is merit to each of those exemptions, but my concern is that we are creating a grey area, particularly when a person engages in both exempt activity and registrable activity. For example, I note that in subsection (4), we do not require those who support the functioning of a diplomatic mission or consular post to register. However, we know that we have potential weaknesses here following the case of one of our own British embassy security staff, who was arrested and charged in Germany with spying for Russia under the Official Secrets Act 1911; it is good to know that that legislation is not totally out of date. That raises the question: do we go as far as we need to on the networks surrounding the vital work of embassies, and can we ensure that an exemption by role does not automatically exempt activity that we would certainly want to know about?

I have had the opportunity to discuss with officials my mixed views about the complete exemption of family members of a principal person under subsections (5) and (6) of new clause 18. While it is right to create a distinction between those we are interested in and their family members, I worry that if we are explicit about this in legislation, we are presenting them as perfect potential spies to the regimes that their principal family member is associated with, bearing in mind that we are dealing with some fairly unscrupulous hostile states.

In new clause 19, again, we are waiting for a great deal more information to be set out in regulation. Under subsection (3), where there is a material change to any information already registered, the Secretary of State has to be notified within 14 days of the material change’s coming into effect. Why 14 days after? Why not in advance of the material change, as is the case in other clauses—for example, within 10 days of the agreement being made when first registering?

Subsection (6) states that a person commits an offence if

“the information provided to the Secretary of State in relation to the registered arrangement or registered activity is misleading, false or deceptive in a material way.”

To come back to my earlier point, who will be undertaking those investigations? We are presumably creating a whole range of new responsibilities here, so who will lead that work, and will they have the corresponding resources?

Government new clause 20 permits the Secretary of State to give a notice to a person to provide information in connection with arrangements or activities registrable under the registration scheme. Subsection (3) states that the Secretary of State may permit an information notice

“requiring the person to whom it is given to supply the information specified in the notice.”

I have no doubt that information notices will be a powerful tool, but there is still a lot to be specified in the new clause.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East made a good point about oversight. I want to push the Minister on what means the public will have to query or raise concerns about an arrangement. If someone is aware of an arrangement that has either not been registered or not registered in full, what mechanism is there for them to raise that with the Home Office?

One of the examples that we discussed yesterday with officials was if a journalist writes an article that appears to be a blatant sales pitch for a hostile state. It would probably take an information notice to get to the bottom of whether it was commissioned by a hostile state, but how would a member of the public raise such a query? How would an employee of a company who is growing increasingly concerned about the nature of a joint project that they are working on raise those concerns with the Home Office? Currently, the mechanism is lacking from the provisions. I would be grateful to hear how the Minister intends to address that concern.

Government new clause 25 allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions. What really worries me about the registration scheme is that submissions will be made to the Home Office and they will go into some sort of electronic black hole and never see the light of day. We will not properly assess the arrangements or activities to see whether we are worried about them, and we will not publish them for months because we do not have the right back office resources to do so.

Any MP who has casework with the Home Office on almost any front—from visas to asylum and the national referral mechanism—will have experienced a similar service, despite, I have no doubt, the best efforts of civil servants. Can the Minister confirm that the register will be kept up to date in relative real time, and that it will be published online, which I think is what he said in his opening remarks? Can he also suggest a target turnaround time between registration and publication, which I am sure would be welcome and would set an early standard for what people can expect from the scheme?

[Stuart C. McDonald]

I will briefly emphasise how incredibly broadly and dangerously drafted new clause 20 is. All sorts of organisations will fall within the scope of the provisions; it could be a local business or a UK non-governmental organisation. Unless I am missing something, under the clause they can be asked by the Secretary of State in an information notice for virtually any information that she fancies helping herself to, with virtually no restriction whatsoever.

The new clause does not even require a link to some sort of ongoing investigation. There is no court oversight of the nature of the request, and there is absolutely no mechanism to challenge or appeal against any sort of information notice. If someone has been handed an absurd information notice and they refuse to comply with it, they can end up being prosecuted. As it stands, new clause 20 seems to be incredibly difficult and should be revisited.

[Tom Tugendhat]

I will come to the point made by the right hon. Member for Dundee East. He is absolutely right. Forgive me—that is a drafting error, which we will look at and tidy up.

On diplomatic staff, the hon. Member for Halifax makes a fair point. This is, however, diplomatic staff and their spouses acting in an official capacity—when they are conducting duties on behalf of their nation, and on behalf of the mission that they are sent to support. It is not supposed to be a blanket exemption; it is merely when they are acting in their role.

Who will manage the unit? A scheme management unit is expected to sit within the Home Office—that is, at least, the current plan—which will administer the scheme. It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny. That is where the right hon. Member for North Durham, who is not currently present, was absolutely right: sunlight is the best disinfectant, and indeed disinfectant is the best sunlight.

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I know the Minister takes those matters seriously, and I hope he will recognise that for these reasons new clause 4 is a sensible distinction, proposed for the right reasons in an attempt to protect rather than undermine the national interest.

[Stuart C. McDonald]

I support the objective of the new clause. When we were debating some of the offences in part 1, the SNP tabled various amendments to try to make it clear that the national interest and the interests of the Government are not necessarily the same thing—often, they are not the same thing at all. It appears that judicial authority says that, in essence, it is for the Government to decide what the national interest is; that does not really assist the position. Whether or not this new clause is the answer is something we will have to revisit again, but I express sympathy with the intention behind it.

[Tom Tugendhat]

I welcome the spirit with which the hon. Member for Halifax has entered into this discussion, and I appreciate her points. Making illegal those matters that irritate Ministers of the Crown would certainly make my life at home significantly quieter, as it would silence my children. Sadly, I think that trying to make case law for my family would be problematic.

It is certainly true that there is a difference between the interests of Ministers and the interests of an individual Minister, whether that be an ordinary Minister or a Prime Minister, and national security. Case law in the United Kingdom already recognises that in considering any prosecution in relation to offences to which the provisions regarding prejudice to the safety of the interests of the UK apply. The UK courts already consider the nature and risk to the safety and interests of the UK. Case law already makes clear that

“the safety or interests of the United Kingdom”

should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. That is notably different from protecting the particular interests of those in office.

Again, I appreciate the spirit with which the hon. Lady has entered into the conversation, but the provisions in part 1 to which the safety or interests test applies are measures that disrupt and respond to serious national security threats, such as those from espionage, sabotage and threats to the UK’s most sensitive sites. As I am sure hon. Members will agree, it is right that appropriate conditions—such as the test of whether conduct is carried out for, on behalf of, or with the intention to benefit a foreign power—are in place to limit the scope of the offences to the types of harmful activity we are targeting.

The combination of the conditions we apply to measures in the Bill mean that not only are the offences themselves proportionate, but an appropriately high bar has to be met to bring a prosecution. These conditions take us firmly outside the realm of merely leaking embarrassing or unauthorised disclosures, or indeed whistleblowing or domestic political opposition. The Law Commission shared that sentiment in the evidence it gave to the Committee—of course I was not present, but given her reference to the length of time in politics I am sure she will understand that.

Individuals and groups might not agree with Government policy, but it still represents the policy that the Government have been elected to carry out, so disclosing protected information from a foreign power can never be the right response to that. It would not be appropriate for the courts to second guess the merits of Government policy in this way. On the basis that the courts are well able to judge the difference between national interest and personal interest, I hope that the hon. Member will withdraw the amendment.

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We understand that the Home Office has engaged with trusted partners on what options look like in this space. I suspect that the Minister will not adopt my right hon. Friend’s new clause, but I want to push him on what his plan is for how we move this important issue forward.

[Stuart C. McDonald]

We support the new clause on a public interest defence.

National Security Bill

Stuart C McDonald Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I will now announce the results of the ballot held today for the election of the Chairs of the Education Committee and the Transport Committee. Due to the compressed time in this Report stage, I will not take any points of order until just before the Adjournment at the end of business today. I hope everybody will be happy with that.

In the Education Committee Chair election, 452 votes were cast, one of which was invalid. The counting went to two rounds. There were 436 active votes in the second round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 219 votes. Mr Robin Walker was elected Chair with 228 votes.

In the Transport Committee Chair election, 448 votes were cast, none of which were invalid. The counting went to five rounds. There were 369 active votes in the final round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 185 votes. Iain Stewart was elected Chair with 192 votes.

Both Chairs will take up their posts immediately. I congratulate Mr Robin Walker and Iain Stewart on their election. The results of both counts under the alternative vote system will be made available as soon as possible in the Vote Office and published on the internet. Congratulations once again.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). He has our full support, both in relation to amendment 14 and to what he said about clause 83.

A Bill of this nature is absolutely necessary and overdue, but I share the concerns of colleagues about the amount of time provided for debate and scrutiny. So short of time do we appear to be that the Minister, much as I respect and like him, did not actually even seem to speak about any of the amendments he has tabled today, including Government amendment 60, which is, frankly, absolutely outrageous, but I will come on to that shortly. It is essential, yes, that we update our espionage laws, but it is also essential that we update them correctly. If we do not do it correctly then: first, we risk severely criminalising behaviour that was not intended to be criminalised; secondly, we leave loopholes to be exploited by those who mean us harm; and thirdly, we confer powers way beyond what is reasonable or required. Our amendments seek to address all three dangers.

First, we have concerns about behaviour that should not be caught in the provisions. We have concerns about the impact of the legislation on protesters, journalists, non-governmental organisations, whistleblowers, those acting in the public interest and, now, victims of trafficking. In some cases, that is because of how some of the specific offences have been framed. For example, by catching someone who might

“approach or be in the vicinity of”

a prohibited place, clause 4 risks seriously criminalising protesters at Faslane for example, assuming the Government still consider nuclear weapons as essential to the

“safety or interests of the United Kingdom”.

Similarly, the National Union of Journalists is concerned that clause 5 risks a chilling effect on its photographers by criminalising any photo of a prohibited place as “inspecting” it. We tabled amendment 120 to protect protesters who are simply in the vicinity of a prohibited place, and amendment 133 to ensure that taking a photograph of a prohibited place is not automatically considered an inspection of it and therefore an offence.

Other groups risk being caught in the Bill, because some of the overarching terms and the framework for deciding when there is foreign influence is perhaps not as tightly drafted as it should be. For example, the very important notion of the

“interests of the United Kingdom”

is central to quite a few offences, yet that is a nebulous concept and appears to be whatever the Government of the day choose it to be. Depending on which day of the week it is and which Prime Minister is in office, fracking might be something the Government think is in the

“interests of the United Kingdom”.

That is an unsatisfactory way to describe a criminal offence, so we have offered a way to try to fix it. Amendments 116 and 118 list specific critical interests, above day-to-day political agendas of the Government, which need protecting. The Minister complained in Committee that the list was not long enough, so we added the ones he complained were missing. It is important to say again that the reason why we included those particular interests is that we are mirroring a scheme under the Official Secrets Act 1989, where specific interests requiring protection are set out: security and intelligence, defence, international relations and crime. The key point is that

“interests of the United Kingdom”

is too broad and too wishy-washy.

We also have concerns about the “foreign power condition”, which is pivotal to deciding whether behaviour is caught by some of the new offences. In particular, as we have heard, there are many NGOs and other institutions with financial links to other Governments. That is why we tabled what is now amendment 124 in Committee to propose that the condition is made out only where the finance was specifically for the act that will be criminalised. However, we welcome Government amendments 48 and 49, which aim to address a similar problem.

Ultimately, like others, I think that the best answer to all these questions is not to make various tweaks here and there. If anything, our scrutiny of the Bill has convinced us more than ever of the need for an overarching public interest defence. We share the regret that we will not have that chance today.

Finally on this group of amendments, we also need to worry about trafficking victims who could be prosecuted as spies or foreign agents. I agree that it is outrageous for the Government to have introduced amendment 60 less than one week before the final stages of the Bill without explanation or evidence. Frankly, I dread the modern slavery legislation that seems to be coming down the track if this is a foretaste of it. People trafficked, enslaved and coerced into activities under this Bill, such as photographing a prohibited site or stealing information, could be punished as though they are guilty of espionage.

I alerted various trafficking charities and experts to the amendment on Monday. They were all completely and utterly unaware of it and certainly had not been consulted on it, despite some of those organisations being on Home Office working groups and the like. They have a million questions to ask about it. Frankly, I am so irritated about how the amendment has been sprung on us that I am absolutely determined that we have the chance to vote on it this evening.

Turning to the loopholes for those who would seek to harm us, I will mention a couple of amendments. On clause 2, on the theft of intellectual property and so on, we queried why that should be an offence only outside the UK in very limited circumstances, even though UK trade secrets were being protected and stolen under the offence. We tabled amendment 117 to ensure that there is also an offence not just when a UK citizen is a victim, but when a UK resident or person in the employment of a UK person is. Government amendment 40 addresses that point insofar as people who live in the UK, but it does not cover employees.

Most significantly, we worry about the rules on registration in relation to the foreign influence registration scheme. If a specified Government seek to direct activities directly in the UK, the operation of the foreign activity regime seems clear. However, it is hard to imagine that that is how things will generally operate. Surely intermediaries will be used much more often. If that intermediary is in the UK, again, the scheme should work, but what if the intermediary is still in a specified country? In theory, it seems as though the intermediary will be under an obligation to register the agreement, but that will not happen. Meanwhile, those doing the activities in the UK seem to have no obligation to register anything, as they have no direct agreement with the specified Government. That seems a possibly significant loophole, so we tabled amendment 130 to flag up the issue of how we deal with intermediaries.

Thirdly and lastly, let me turn to amendments that seem to grant excessive powers to the Government. Amendment 121 places restrictions on the additional sites that the Home Secretary can deign to be prohibited. Prohibited places have always previously related to security, so we think that new sites should also relate to security and that the nebulous concept of “interest” should not be enough to justify allowing a Home Secretary to add extensively to that list.

Clause 70, which is part of the registration scheme, creates ludicrously broadly drafted powers for the Secretary of State to ask for pretty much any information that she wants from any body or organisation that is or should be registering a scheme. That will be a huge number of bodies. However, if we look at clause 70, we see that there is no limit on the type of information that can be requested or the purpose of the request. There is no means to challenge or appeal against a notice. In Committee, the Minister said that the clause’s purpose was to allow the Home Secretary to seek such information as is necessary to make sure that people comply with the registration requirement. None of that is in the Bill, however, so amendment 131 would put that restriction in it. It is the bare minimum protection that we require.

The major overreach has been described by the right hon. Member for Haltemprice and Howden: clause 27’s carve-out for the security services in relation to the Serious Crime Act. I echo what the shadow Minister, the hon. Member for Halifax (Holly Lynch), said. We approached this with an open mind. Officials and staff have been successful in persuading us of the need for many parts of the Bill, but not here. As was remarked on Second Reading, other protections are in place. I have not heard any suggestion that members of the Intelligence and Security Committee have been persuaded by the services, so we, too, remain concerned that the proposal provides an enormous and unwarranted protection from prosecution, even where Ministers or officials provide information that leads to torture overseas.

The right hon. Member for Haltemprice and Howden has also addressed the powers provided to courts in relation to the award of damages, which rather stink of Ministry of Justice virtue signalling and politics. There are already powers to deal with those dangers, as the Minister sort of accepted today in his letter to members of the Bill Committee. Amendment 132, which is directly informed by the comments of Jonathan Hall KC, the independent reviewer of terrorism legislation, would at least mean that there has to be proof on the balance of probabilities before damages can be permanently confiscated—a modest proposal, and one that the right hon. Member has advocated. We are also sympathetic to the right hon. Member’s amendments to take the relevant provisions out altogether.

The Bill’s legal aid provisions are, frankly, utterly farcical. It is the criminal justice system that should be used to punish people, not the civil justice system. Our amendments 125 to 127 would clip the wings of the state threat prevention and investigation measures by ensuring that the normal civil test applies before they can be imposed, by reducing the number of times they can be extended, and by taking out provision for polygraph testing.

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[Stuart C. McDonald]

I, too, thank all colleagues for their involvement and engagement in the Bill, even if we could have done with a little more time for that today. I also thank all the officers and staff of the Home Office and the agencies for their engagement. They have persuaded us of the merits of large parts of the Bill, if not quite all of it. I want personally to thank my right hon. Friend the Member for Dundee East (Stewart Hosie) for keeping me right on lots of these issues, and my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) for her detailed work with the Joint Committee on Human Rights.

We do need a Bill of this nature—in fact, a Bill of this nature is long overdue. There are still dangers—as I said on Report, we have to make sure that we do not criminalise people the Bill is not intended to criminalise or leave loopholes for people who should be criminalised, and that we rein in some of the more excessive powers—but the Government have listened to some of our concerns and responded positively to some of the amendments. I just encourage them to listen more as the Bill proceeds.

Question put and agreed to.

Bill accordingly read the Third time and passed.

National Security Bill

Stuart C McDonald Excerpts

Consideration of Lords amendments
Wednesday 3rd May 2023 Commons Chamber

[Madam Deputy Speaker (Dame Rosie Winterton)]

Before I call the SNP spokesperson, let me say that, obviously, this debate is time limited, and I am sure that hon. Members will want to leave some time for the Minister to conclude.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Once again, it is a pleasure to have the opportunity to scrutinise what we recognise as an extremely important piece of legislation. Like both the Minister and the shadow Minister, I wish to start by paying tribute to all those who are involved in protecting us and our security.

The National Security Bill has had SNP support from the outset, but we have also highlighted significant problems with it: things that were not in the Bill that should have been; things that were in the Bill that needed fixing; and things that were in the Bill that had no place in there at all. I welcome that many of those concerns were also raised in the House of Lords, and recognise that the Government have responded positively to several of them.

We welcome the amendments that have added clarity to the scope of some of the offences in the Bill, particularly around the state of knowledge required before offences are committed. In general, we welcome the changes to the registration schemes, which will make them more targeted. We also welcome the broadening of the oversight provisions to ensure that the measures in part 1 of the Bill are properly scrutinised.

On omissions, we continue to think that the failure to reform the Official Secrets Act 1989 is a major opportunity missed, and we regret that there has been no addition of a public interest defence, which is something to which a number of Members have alluded. That is an issue that will have to be returned to urgently.

Some improvements have been made to the Ministry of Justice’s clauses in the Bill relating to legal aid. However, we remain of the view that the legal aid provisions should have been taken out altogether. In relation to the award of damages in clause 83, improvements have been made, but, yet again, not enough. It is welcome that reductions in awards of damages now can happen only where there is a direct link between the alleged act of terrorism and the claim for damages. However, there is still concern about how this will operate when foreign Governments—Governments who have carried out torture based on UK intelligence—simply use the smear of an unproven terrorism allegation to justify or defend their actions.

[Martin Docherty-Hughes]

I wish to go back to the point that I made to the Chair of the ISC, who is a very good friend and who must be commended for everything that he does in relation to that Committee. Again, clauses 85 to 88 seem to allow any British Government to avoid paying damages if the intelligence services have participated in the torture of a UK national, such as my constituent Jagtar Singh Johal, by an ally, especially if they are found not guilty and let go.

[Stuart C. McDonald]

I am grateful to my hon. Friend for intervening. His constituent’s case is one that I had in mind when drafting this part of my speech. We do not need to look too far to think of other possible examples. I hope the provisions that he is referring to do not have those implications, but more could have been done to make that absolutely clear. What would be useful today at least would be to have assurances from the Minister that mere assertions by foreign Governments will not be enough to allow that clause to apply. It must be for the courts to interrogate whether assertions that somebody was involved in torture are made out.

Let me turn to the amendments under discussion today. Lords amendment 22 would place additional duties on political parties in relation to risks of donations from foreign powers. In the interests of transparency, I should declare an interest: I have recently had the great honour of being appointed the national treasurer of the Scottish National party, so this amendment would add to my already rather full in-tray. Notwithstanding that, we must acknowledge the serious dangers posed by such donations to our democratic political systems and indeed to our security.

We have been warned by the Intelligence and Security Committee in its Russia report, by MI5 and by various other bodies about the dangers of foreign influence being sought through donation. Yes, we do have the Political Parties, Elections and Referendums Act 2000, but we cannot seriously think that we are remotely in a position to say that the risk has been dealt with. Far from it, the repeated and significant circumvention of those rules is precisely why we continue to receive the warnings that I have just referred to. We need to think about going beyond basic status checks on donors to investigating—where an assessment of risk requires it—the real source of donations. There is support for that type of approach from the Electoral Commission and the Committee on Standards in Public Life.

We welcome this amendment by Lord Carlile, a former independent reviewer of terrorism legislation, with support from the former head of MI5, Lord Evans, and others. As the Chair of the Intelligence and Security Committee has said, this is a modest rather than revolutionary proposal, but it is definitely a step in the right direction. Frankly, opposition to the amendment seems rather fishy indeed.

On Lords amendment 122 and the role of the Intelligence and Security Committee, my general approach is to give colleagues on the ISC all the support that they request. The job that they do is utterly crucial, and I have never had any reason to doubt how seriously and assiduously they go about their task. Their annual report highlighted the need for an updated memorandum of understanding, particularly given the outsourcing of intelligence and security activities to different policy Departments, but there is no sign of that update happening. The support of ISC colleagues for Lords amendment 122 therefore attracts significant deference and weight. Frankly, if nothing else, the Government need a metaphorical kick up the backside in their approach to the ISC—an approach exemplified by the failure of any Prime Minister to meet the ISC since 2014. Therefore, we support Lords amendment 122.

Finally, we welcome the significant change in approach to the offences under part 2 of the Serious Crime Act 2015, and thank all involved in the drafting of the new clause. In particular, it is welcome that the provision now takes the form of a defence rather than an exemption or a carve-out. However, we do remain concerned that there is no specific exclusion in relation to serious harms, such as torture, cruel, inhuman and degrading treatment and sexual offences. If anything, we are even more concerned now than before. Obviously, the Government have spent a lot of time redrafting the Bill in the light of the concerns that have been raised, yet they have still decided to exclude such serious harms from the scope of the defence. It seems a very deliberate and conscious choice that they have made and the Fulford principles do not provide sufficient safeguards on their own.

We therefore support amendment (c) to Lords amendment 26, tabled by the right hon. Members for Orkney and Shetland (Mr Carmichael) and for Haltemprice and Howden (Mr Davis). At the least, it would be very useful to have the Minister say at the Dispatch Box that the Government do not see any circumstances in which such activities could be deemed necessary for the purposes of an intelligence function. On that note, we welcome amendment (c).

We do support the Bill, but we still think there is further to go to get it to where it needs to be.

[Sir Jeremy Wright]

I am grateful for the opportunity to speak in this debate, and also grateful to my right hon. Friend the Member for New Forest East (Sir Julian Lewis) for setting out so clearly the position of the Intelligence and Security Committee, of which I am also a member. He made many points with which I agree and which I do not need to repeat, but I do want to say something very briefly about Lords amendments 22 and 122 in slightly more detail. Both amendments have something in common, which is that they highlight a significant problem and put forward, perhaps, an imperfect solution to those problems. The Government’s saying that they are imperfect solutions has validity, but it would have more validity if the Government were prepared to come forward with solutions to those problems that were less imperfect, which we could all then support.