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.

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[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?

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[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.

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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.

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[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.

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[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.

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[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”.

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[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.

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[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.