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.

--- Later in debate ---

[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.