Tom Tugendhat
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National Security Bill
Tom Tugendhat ExcerptsWednesday 16th November 2022
(2 years ago)
Commons ChamberRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 November 2022 - large print - (16 Nov 2022)
The Minister for Security (Tom Tugendhat)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
New clause 1—Offence of failing to declare participation in arrangement required to be registered.—
“(1) A person who carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to—
(a) a foreign activity arrangement required to be registered under section 61(1), or
(b) a foreign influence arrangement required to be registered under section 64(1)
must declare that they are party to the arrangement, when making a communication to those in section 65(2)(a)(i) to (vi).
(2) A person who breaches the requirement in subsection (1) commits an offence.”
This new clause makes it an offence for a person to engage in activity pursuant to a foreign activity or foreign influence arrangement which is required to be registered, if the person does not declare that they are party to the arrangement when communicating with those in section 65(2)(a)(i) to (vi).
New clause 2—ffence of carrying out activities under a foreign activity arrangements: Disqualification from Parliament—
“(1) A person who is a Member of the House of Commons or the House of Lords commits an offence if—
(a) the person carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to a foreign activity arrangement, and
(b) the persons knows, or ought reasonably to know, that they are acting under the direction of a specified person.
(2) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Commons, is disqualified from membership of the House of Commons.
(3) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Lords, is disqualified from sitting or voting in the House of Lords, and sitting or voting in a committee of the House of Lords or a joint committee of both Houses.
(4) In this section, “foreign activity arrangement” has the same meaning as in section 61(2).”
This new clause would automatically disbar Members of the House of Commons and Lords who are found guilty of engaging in an activity pursuant to a foreign activity arrangement, where the person knows, or ought reasonably to know, that they are acting under the direction of a specified person.
New clause 3—Reviews of Parts 1, 4 and 5—
‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.
(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.
(3) The operation of Parts 1 and 5 must be reviewed by either—
(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or
(b) a different person appointed by the Secretary of State.
(4) Reviews under this section must be carried out in respect of—
(a) the 12-month period beginning with the day on which any section in this Part comes into force, and
(b) each subsequent 12-month period.
(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.
(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.
(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.
(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the “expenses” and “allowances” mentioned therein may include the discharge by the person or people of their functions under this section.’
New clause 4—Reporting on disinformation originating from foreign powers—
“(1) The Secretary of State must appoint a person or body to review the extent of disinformation originating from foreign powers which presents a threat, or potential threat, to national security.
(2) A review under subsection (1) must include an assessment of the extent of foreign interference in elections.
(3) A review under subsection (1) may include—
(a) examining the number and scale of offences committed, and estimating the number and scale of instances where an offence is suspected to have been committed, under—
(i) section 13, where Condition C is met, and
(ii) section 14,
and,
(b) any other matters the person or body considers relevant to the matters mentioned in subsections (1) and (2).
(4) The person or body appointed under subsection (1) may be the Intelligence and Security Committee of Parliament, or another person or body the Secretary of State considers appropriate.
(5) A review must be carried out under this section in respect of—
(a) the 12-month period beginning with the day on which section 13 comes into force, and
(b) each subsequent 12-month period.
(6) Each review under this section must be completed as soon as reasonably practicable after the period to which it relates.
(7) The person or body must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.
(8) On receiving a report under subsection (7), the Secretary of State must lay a copy of it before Parliament.
(9) The Secretary of State may pay to the person or body—
(a) expenses incurred in carrying out the functions of the reviewer under this section, and
(b) such allowances as the Secretary of State determines, except where financial provision is already made to the person or body for the discharge of the person or body’s functions, of which this section may form part.”
New clause 5—Proceedings relating to safety or interests of the United Kingdom—
“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.
(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”
New clause 6—Ministerial conduct—
“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.
(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—
(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or
(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.
(3) In this section “engagement” includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”
New clause 7—Requirement to inform public of prohibited places—
“The Secretary of State must by regulations make provision so as to ensure that the public are given sufficient notice—
(a) that a location is a prohibited place within the meaning of section 7;
(b) of the circumstances in which an offence may be committed under sections 4 to 6 in respect of that prohibited place.”
This new clause would place an obligation on the Secretary of State to make regulations providing for the public to be given notice of prohibited places and the conduct which would amount to a criminal offence in relation to them.
New clause 11—Home Office review of the Tier 1 (Investor) visa scheme—
“Within two weeks of the passage of this Act, the Secretary of State must publish any findings of the Home Office review of the Tier 1 (Investor) visa scheme which relate to foreign influence activity.”
New clause 12—Report on actions taken in response to the ISC report on Russia—
“Within six months of the passage of this Act, the Secretary of State must lay before Parliament a report on the effect of the action taken by the Government in response to the recommendations of the report of the Intelligence and Security Committee of Parliament on Russia (HC 632 of Session 2019–21).”
New clause 13—Ministerial appointments: official advice—
“(1) The Cabinet Secretary must publish a memorandum in respect of any ministerial appointments made by the Prime Minister, where advice or concerns were communicated to the Prime Minister by civil servants that the appointment may be counter to the safety or interests of the United Kingdom.
(2) A memorandum under this section must set out that advice or concerns were communicated to the Prime Minister by civil servants, and in respect of which ministerial appointments.
(3) A memorandum under this section may not include details of the advice or concerns, where the Cabinet Secretary considers that inclusion of those details may be prejudicial to the safety or interests of the United Kingdom.”
New clause 14—Report requirement: Protecting democratic institutions and processes—
“(1) The Secretary of State must lay before Parliament a report, as soon as practicable after the end of—
(a) the period of 12 months beginning with the day on which this Act is passed, and
(b) every subsequent 12-month period,
on his assessment of the impact sections 13 and 14 of this Act have had on protecting the integrity of the UK’s democratic processes.
(2) In this section “democratic processes” includes local democracy.”
Amendment 116, 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 17, page 1, line 15, after “article” insert “with a Government Security Classification of Secret or Top Secret”.
This amendment would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).
Amendment 18, in clause 2, page 2, line 18, at end insert “(ca) the person’s conduct is prejudicial to the safety or interests of the United Kingdom, and”.
This amendment would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.
Amendment 117, page 3, line 1 , after “national” insert “, a UK resident, or a person in the employment of a UK person as defined in paragraphs (b) or (c)”.
Government amendments 40 to 42.
Amendment 19, in clause 3, page 3, line 32, after “Kingdom” insert “which are prejudicial to the safety or interests of the United Kingdom”.
This amendment would narrow the scope of the offence of assisting a foreign intelligence service in respect of activities within the UK so that it applies only to assistance that would prejudice the safety or interests of the UK (rather than to assistance of any kind).
Government amendment 43.
Amendment 119, page 4, line 7, at end insert—
“(aa) with the knowledge and consent of the UK security and intelligence services,”.
This amendment would clarify that activities undertaken with the knowledge and consent of the UK security and intelligence services would not constitute a criminal offence under this clause alone.
Amendment 120, in clause 4, page 5, line 17, at end insert—
“(7) No offence is committed under (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 clause.
Amendment 20, in clause 5, page 5, line 25, at end insert—
“(ba) the conduct is prejudicial to the safety or interests of the United Kingdom,”.
This amendment would confine the offence of unauthorised entry etc to a prohibited place so that it applies only to entry etc that is prejudicial to the safety or interests of the UK.
Amendment 133, page 5, line 33, leave out “includes” and insert “may, depending on the circumstances, include”.
This amendment would mean taking a photograph or other recording of a prohibited place was not automatically a criminal offence of inspecting that place, but would depend on the circumstances.
Amendment 21, in clause 6, page 6, line 17, leave out paragraph (c).
This amendment would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.
Amendment 22, page 6, line 28, after “(2)” insert “, (a)”.
This amendment is consequential on Amendment 23.
Amendment 23, page 6, line 30, after “Kingdom” insert “, and (b) without prior authorisation by an officer of at least the rank of Inspector, unless obtaining that authorisation is not reasonably practicable”.
This amendment would impose a requirement that a police officer obtains authorisation from a more senior officer before exercising powers under clause 6.
Amendment 24, page 6, line 32 at end insert “which was necessary to protect the safety or interests of the United Kingdom and proportionate to that aim.”
This amendment would narrow the offence of failing to comply with an order made by a police constable in relation to a prohibited place so that it applies only to an order that was necessary and proportionate to protecting the safety or interests of the UK.
Amendment 25, in clause 7, page 6, line 37, after “means” insert “a place, entry to which could pose a risk to the safety or interests of the United Kingdom, and which is”
This amendment would narrow the definition of prohibited place so that it applies only to locations relevant to the safety and interests of the United Kingdom (rather than any Ministry of Defence land).
Government amendments 44 and 45.
Amendment 121, in clause 8, page 8, line 21, leave out “or interests”.
This amendment would restrict the power to designate additional prohibited places by regulation to where it was necessary to protect the safety of the United Kingdom.
Amendment 26, in clause 11, page 10, line 8, leave out paragraph (c).
Government amendments 46 and 47.
Amendment 14, page 20, line 35, leave out clause 27
Government amendments 48 and 49.
Amendment 124, in clause 28, page 21, line 23, at end insert—
“(2A) However, 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 (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 under this act if that funding was not for the conduct or course of conduct that would otherwise amount to the offence.
Amendment 30, in clause 30, page 22, line 40, leave out paragraph (c).
This amendment would narrow the definition of foreign power threat activity to remove giving support and assistance (including that unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).
Government amendment 50.
Amendment 118, in clause 31, page 23, line 25, at end insert—
““critical interests of the United Kingdom” include security and intelligence, defence, international relations, law and order, public health and economic interests;”.
This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.
Amendment 125, in clause 37, page 26, line 25, leave out “reasonably believes” and insert “believes on the balance of probabilities”.
This amendment would apply the usual civil standard of proof in relation to decision to impose Prevention and Investigation Measures.
Amendment 126, in clause 38, page 27, line 35, 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.
Amendment 31, in clause 43, page 30, line 21, leave out from beginning to “before” in line 22 and insert “The chief officer of the appropriate police force must confirm to the Secretary of State that the condition in subsection (2) is satisfied before”.
This amendment, together with amendments 16 to 18, would require the Secretary of State to receive confirmation from the police that prosecution is not realistic before imposing a PIM, rather than requiring only a consultation on the subject.
Amendment 33, page 30, line 28, leave out “The matter is whether there is” and insert “The condition is that there is not”.
Amendment 34, page 31, line 14, leave out “responding to consultation” and insert “providing confirmation”.
Amendment 32, page 31, line 26, leave out “(1) or”.
Amendment 35, in clause 53, page 38, line 13, leave out “this Part” and insert “Part 1 and Part 2”.
This amendment would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.
Amendment 3, in clause 58, page 41, line 8, at end insert—
“(2) Within three months of the passing of this Act, the Secretary of State must publish a statement setting out how the Secretary of State intends to exercise the power under this section. The statement must include a list of illustrative examples of the kinds of contracts or other arrangements this power relates to.”
Government amendments 61 and 62.
Amendment 130, in clause 61, page 43, line 19, after “P” insert “, whether directly or through intermediaries”.
This amendment would make clear that those making a foreign activity arrangement via intermediaries, would be required to register the arrangement.
Government motion to transfer subsection (2) of clause 61.
Government amendments 63 to 65.
Government motion to divide clause 61.
Government amendments 66 to 74.
Government motion to transfer subsection (2) of clause 64.
Government amendments 75 to 83.
Government motion to divide clause 64.
Government amendments 84 to 94.
Amendment 15, in clause 68, page 48, line 20, leave out paragraph (b).
Amendment 16, page 48, line 25, leave out paragraph (b).
Government amendments 95 to 101.
Amendment 131, in clause 70, page 51, line 10, at end insert—
“(3A) The information required of the person to whom an information notice is given must be limited to information the Secretary of State deems reasonably necessary to ensure the person is complying with the requirements of this Part.”
This amendment would place restrictions on the type of information the Secretary of State can require under clause 70.
Government amendments 102 to 108.
Amendment 1, in clause 75, page 53, line 39, at end insert—
“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign activity arrangement required to be registered under section 61(1).”.
This amendment is consequential on NC1.
Government amendment 109.
Amendment 2, page 54, line 23, at end insert—
“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign influence arrangement required to be registered under section 64(1) .”.
This amendment is consequential on NC1.
Government amendments 110 to 112.
Amendment 8, Page 56, line 4, leave out Clause 79.
Amendment 9, Page 56, line 26, leave out Clause 80.
Amendment 36, in clause 80, page 56, line 31, at end insert—
“(ba) the court is satisfied that any damages awarded to the claimant in those proceedings are likely to be used for the purposes of terrorism,”.
This amendment would remove the duty on the court to consider reducing damages in clause 58, unless the court considered the damages were likely to be used for the purposes of terrorism.
Government amendments 51 to 53.
Amendment 37, page 57, line 18, at end insert “or which it would award under section 8 of that Act had the claim been brought under it.”.
This amendment would prevent the reduction of damages in claims that could have been brought as a human rights claim under the HRA 1998 but were in fact brought on other grounds.
Amendment 10, page 57, line 30, leave out clause 81.
Amendment 11, page 58, line 5, leave out clause 82.
Amendment 12, Page 59, line 10, leave out clause 83.
Amendment 38, Page 59, line 14, leave out clause 84.
This amendment, together with Amendment 39, would remove the proposed limits on access to legal aid for persons with a conviction for a terrorism offence and the consequential power to make information requests related to those limits.
Amendment 5, in clause 84, page 59, line 29, leave out “F” and insert “G”.
Amendment 6, page 60, line 11, at end insert—
“(7A) Condition G is met where the offender is seeking legal aid for the purposes of—
(a) pursuing a civil order, where the purpose of the order is to protect a victim of domestic abuse, or
(b) participating in family court proceedings, and where the offender is a victim of domestic abuse.”.
Amendment 7, page 61, line 6, at end insert—
“”domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;”
Amendment 39, page 61, line 15, leave out clause 85.
See explanatory statement for Amendment 38.
Government amendment 113.
Government new schedule 1—Control of a person by a foreign power.
Government new schedule 2—Exemptions.
Amendment 128, schedule 3, page 88, line 31, leave out sub-paragraph (4).
This amendment would prevent a disclosure order from having effect where disclosure is protected by an enactment.
Amendment 129, schedule 4, page 94, line 29, leave out sub-sub-paragraph (b), and insert—
“(b) there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation; and
(c) there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.”
This amendment would require the court to be satisfied of the same tests for customer information notices as set out in relation to disclosure orders in Schedule 3.
Government amendment 54.
Amendment 4, schedule 6, page 100, line 19, at end insert—
“(1A) A place designated by the Secretary of State under sub-paragraph (1) must be subject to an independent inspection by—
(a) Her Majesty’s Inspectorate of Constabulary, or
(b) a different person or body appointed by the Secretary of State.”.
Government amendment 55.
Amendment 27, page 104, line 12, leave out sub-paragraphs (4) and (5).
This amendment would prevent it being permissible to delay informing a named person of an individual’s detention under clause 21, or that individual consulting a solicitor, for the purposes of asset recovery.
Amendment 123, page 112, line 13, leave out from “if” to the end of line 20, and insert “the person has previously been convicted of an offence under this Act.”
This amendment would restrict the circumstances in which fingerprints and samples from someone detained under clause 25 could be retained indefinitely, instead of the usual 3 years under paragraph 20(5) of Schedule 2.
Government amendments 56 and 57.
Amendment 28, page 124, line 13, leave out sub-sub-paragraphs (b) and (c).
This amendment would prevent it being permissible to postpone reviews of detention without warrant on the basis that the review officer is unavailable or, for any other reason, the review is not practicable.
Amendment 127, schedule 7, page 144, line 17, leave out paragraph 12.
This amendment would remove the power for the Secretary of State to impose participation in polygraph sessions as part of provisions in relation to Prevention and Investigation Measures.
Government amendments 58 and 59.
Amendment 13, page 175, line 1, leave out Schedule 13.
Amendment 132, schedule 13, page 176, line 29, leave out “there is a real risk that”.
This amendment would ensure the court was satisfied on the balance of probabilities that damages were to be used for terrorism purposes before frozen funds could be forfeited entirely.
Government amendment 60.
Tom Tugendhat
It is a pleasure to stand before the House today to introduce not just new clause 9, but many other new clauses that I and many others in this House have argued for at different times and in different places.
Tom Tugendhat
Plus a few others. So it is a great pleasure to be here today.
May I also place on record my enormous thanks to two right hon. Members—the hon. Member for Garston and Halewood (Maria Eagle) will smile as I say this—who have done so much to get us to this position today? I refer to my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who have been extremely generous with their time and thoughts, including in private with me as well, in making sure that I am able to answer as many of her questions as I can, although somehow she has exceeded even their magisterial intellect. I am grateful that they have got us to this place, because this Bill is essential for the future defence of our nation.
The reason for that is because, of course, the world has changed. The reality is that national security in this country has changed and evolved in recent years, and the Darwinian challenge between the hunter and the hunted has led us to a position where we need to update not just our techniques, which can be done in private, but sadly our laws, which rightly must be debated in public.
I think we all agree with the core aims of the Bill. The first is to give our law enforcement and intelligence agencies the tools they need to tackle harmful activities in the United Kingdom carried out by, or on behalf of, foreign powers. However, to do that we also need to increase the transparency around those who seek to influence the politics and institutions of the United Kingdom through the foreign influence registration scheme. That is a very welcome addition. I know that many Members here, including those who have been on the Foreign Affairs Committee for the past five years, have called for it at various different points. The Bill has, at its heart, the protection of the national security of this great country that we all serve.
Tom Tugendhat
On that, I will give way—not for the last time, I am sure—to the right hon. Member.
Mr Kevan Jones
The Minister talks about Darwinian change, but evolution takes a long time. Many things in the Bill have been kicking around for at least six or seven years, and that includes the issue around the foreign influence registration scheme, which was only put in the Bill at Committee stage after it was omitted on Second Reading; even now, there are amendments to it. Is the Minister satisfied that the Bill—in terms of the major changes that it will achieve—will fulfil its purpose and that it has been properly scrutinised in this House?
Tom Tugendhat
What I am so pleased about with this Bill is that it introduces so many ideas that the right hon. Gentleman and I have discussed in private over many years when I was in a similar position to him—scrutinising a Government. The Bill introduces some of those ideas that, yes, he is right to say, seem to have been introduced quickly, but the reality, as he knows very well, is that they have been discussed slowly. Many aspects of the Bill not only date six or seven years into the past, but update aspects that date a lot further back. Sadly, some of our national security legislation is better placed to hunt those who would send secret notes on pigeons back to Germany than to hunt those sending secret messages through the internet. This is updating quite a lot of laws that date all the way back to the first world war. I am very glad that we are doing it, and I am very glad that the right hon. Gentleman’s scrutiny in the Bill Committee has been so rigorous and so onerous.
Sir John Hayes (South Holland and The Deepings) (Con)
My right hon. Friend is right that this is an important step. In particular, he is right about the foreign influence registration scheme, which has long been called for, including by the Intelligence and Security Committee, of which I am a member. He will also know that, because we have yet to discuss that in any detail, there may be confusion about the primary and secondary tiers—in other words, those things that are designated as being of more profound importance than these other things. Would it be helpful if he were to write to the ISC, setting out how he thinks they would work in practice, given that we understand that the secondary tier will be introduced by secondary legislation?
Tom Tugendhat
My right hon. Friend is right. I would be very happy to write to him. I can summarise it now by saying that the primary tier is that connected to political activity. Anybody from any foreign country who wishes to influence this House, this Parliament, any Members here, or indeed any political outcome, would be looking at the primary tier. That is the basic level, and it involves a registration on a website so that we can all know who has taken payment for what—which piper has been paid and by whom.
The enhanced registration is different and requires registration for a wider range of activities, but those depend on the specific foreign power and, indeed, the entity or operation within it. That is a different matter, and that will be down to the Secretary of State looking at what is reasonably necessary in order to protect the safety and interests of the United Kingdom—that is the enhanced tier, as we are calling it. That is the summary, but I will be happy to write to the ISC.
Chris Bryant
The Minister said that once somebody has registered on a website, we will all be able to see it. That may be true if we knew that that was where we had to look to check whether somebody coming in through the door, sending us a letter or inviting us to dinner as an MP was actually somebody who was working for a foreign power. Would it not be far more sensible, once somebody has registered, to require them to declare to any Minister, MP or Member of the House of Lords that that is what they were doing, so that there is a degree of protection for this House?
Tom Tugendhat
The hon. Member makes a very good point: there are many areas in which the individual concerned should certainly be doing the responsible thing and advertising it. The basis of this has to be a balance, so requiring people to register is, I think, a very good start. We need to take forward some of the recommendations that the hon. Member has made and the thoughts he has expressed, because he is absolutely right that transparency in all things is important.
Stewart Hosie (Dundee East) (SNP)
The Minister has accurately described what the two different tiers of the FIRS scheme will do, but it is difficult to understand why the registration of harmful activity outside of political influencing, such as covertly acting as an intelligence officer, only applies to a foreign power that is set out in secondary legislation. Surely, if that activity is wrong, it is wrong whether the country is on an as-yet-undefined list or not.
Tom Tugendhat
I think the right hon. Member will find that espionage is illegal in the United Kingdom, whoever is carrying it out.
Dr Lewis
The Minister is very forbearing, and I am glad of the opportunity to warmly congratulate him on his appointment and thank him for the positive way in which he has been reaching out to the ISC.
On the question of the second tier, there appears to be some sort of discrimination between countries that are friendly and those that are hostile, and—unless I misunderstand the Bill—only the hostile ones are going to appear in the secondary designation. If that is the case, could it not lead to some anomalous situations when diplomatic relations improve with a country, so we take it off the second tier, or they worsen and we put it on? There is bound to be a time lag in that sort of thing, so how practical is the second tier scheme as it is currently constituted?
Tom Tugendhat
My right hon. Friend makes a valid point. The challenge that we have, as he knows very well, is how we balance the responsibility to inform and how wide we go. I have spoken about this issue with my right hon. Friend in the past, and his judgment on this is something I have always valued, so it has always been very important to me that we share a view on it. However, I think we all agree that where a foreign power is seeking to influence our political life in the broadest sense, we should know about it, whoever is exercising that influence.
I take my right hon. Friend’s point about enhanced registration. Sadly, there is inherently a delay between the way that life changes and the response of Government —that is the reality of existence—but it is important for us to recognise that some countries and entities do require enhanced awareness. That is why it is important for us to have an extra tier.
Maria Eagle (Garston and Halewood) (Lab)
Will the Minister give way on that point?
Maria Eagle
I am grateful to the Minister for giving way. He has talked about the challenges and the enhanced part of the scheme. Will it not be a challenge to use the scheme in practice, because he has to put the country concerned into secondary legislation? Is that not going to be diplomatically very difficult to do? Is the reality not that the complex way in which the Government have set out the scheme, with little scrutiny possible from either this Chamber or Committees, means that in practice it is not going to be used at all?
Tom Tugendhat
I think the hon. Lady knows me well enough to know that, having been sanctioned by three countries now, it is unlikely that I will be reticent in identifying those that I think are threats to the United Kingdom.
Tom Tugendhat
I am very confident that others will also be bold on His Majesty’s behalf. Whoever is fortunate enough to be representing His Majesty in the Home Office will be able to conduct those offices in the good fashion that people expect. [Interruption.] I will move on.
The core of the Bill is, of course, national security and our intelligence services, building on the work they have done to enable us to grow in confidence and prosperity. They have provided the security apparatus that allows freedom beneath and around it. That is an extraordinary luxury and a blessing that this country has been able to enjoy for many years and generations because of the courage and intellect of so many people. They require tools to conduct those tasks, and I am delighted that the Bill will sharpen some of those tools.
Mr Kevan Jones
As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, we had four Ministers in the Bill Committee. Yes, the Minister has listened, but nothing in the Bill has changed. It is still a mess, and that goes back to the fundamental point about not including the Security Service Act 1989 in the reform that is needed. Let me tell the Minister now: the lack of scrutiny in this House means that the Bill will be absolutely torn to shreds in the other place.
Tom Tugendhat
The right hon. Gentleman will not be surprised to hear that we disagree on that element, but it has been a great pleasure to work on the Bill with him and with many others in the Chamber, and to hear their comments and criticisms. There are many other supplementary areas that I would like to work on in different places at different times, but the Bill answers the essential need that we have now, which is to update our national security legislation to keep the country safe and defend our people, and to ensure that those who have the courage, integrity and wisdom to keep us all safe have the tools at their disposal to do so.
Several hon. Members rose—
Joanna Cherry (Edinburgh South West) (SNP)
I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.
I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.
We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.
The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.
Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.
We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by the right hon. Member for North Durham (Mr Jones), which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.
Tom Tugendhat
This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.
Chris Bryant
One thing that the Government have certainly had plenty of time to get ready is the tier 1 visa report, as promised by five Home Secretaries. When will the Minister publish it?
Tom Tugendhat
It will not surprise the hon. Gentleman to know that one of the first things I did on arrival at the Home Office was to ask for it to be prepared for publication. I will come back to him with it, I hope, urgently—I will let him know.
Many different points have been raised. I pay enormous tribute to my many right hon. and hon. Friends who have spoken and to those who have approached the Bill with the diligence and seriousness that the subject demands, particularly the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who have been extremely supportive critics and have been challenging in the right spirit. I am glad to say that those discussions have resulted in most of the Bill going through in the way that was intended, and that those challenges and changes have improved it.
I accept that there are some differences of opinion. On areas such as the Serious Crime Act and the changes to statutory requirements, I believe that the Government are right because the exercise of the functions of an officer of the state are exactly what should be the limiting functions of their powers. That is why this reform makes sense, although my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) raised some important points and challenges that we will have to look at.
My right hon. and learned Friend also asked about damages and whether they followed in the way that he described, and I agree that they do. The point is that we should neither make it harder or more applicable to have damages, nor prevent it where judges seek the discretion to do so. Where they have that discretion, they may continue to do it, but we are asking them to look and consider the situation in which those damages arose to make sure that they are truly applicable. It is merely a review policy, rather than a block. That is an important element of the Bill; judges may already have that power but this measure merely puts it on the statute book.
Much of the debate has focused on whistleblowers and the public interest defence, and the way in which various people could argue that they are acting in the interests of the wider polity in raising different objections. This is a hugely important area and I understand that many hon. Members have raised different points. The head of MI5, the heads of various agencies and many others who have engaged on it have been absolutely clear on this point, however, because we need to make sure that we are not introducing any defence that forces the Government to reveal the damage that has been done in order to provide a defence.
The reality is that forcing the publication of damages may indeed be further damaging to the initial offence. That is why although I take the point about the public interest defence, which is a wider question for the whole of Government and the whole country, and I take the point about whistleblowers, which is again a wider question and not specific to the Bill, I am afraid that I hold with the head of MI5 and others who have been extremely clear on this point.
Mr Kevan Jones
With the greatest respect, that is a weak argument, because there can always be closed hearings on national security grounds. I say to the Minister that this issue will not go away—the courts are deciding it anyway. I would sooner state a protection in law than leave it to the whims of a jury, which is what we have now.
Tom Tugendhat
I have a great trust in our jury system, and I know the right hon. Member does, too.
Tom Tugendhat
Oh, he does not. I do have trust in our jury system and I do have trust in the Great British people to make decisions appropriately. One of the decisions sometimes made by juries is to strike out a case because they disagree with it. I am afraid that is simply one of those—
Mary Robinson (Cheadle) (Con)
The public interest defence has been mentioned on several occasions throughout this debate. Notwithstanding the strictures of national security and of this Bill, it is important that people have a reliable route that they can take when they want to expose wrongdoing. Does my right hon. Friend consider that an office of the whistleblower might be such a route? I know the public interest defence is very likely to come forward again.
Tom Tugendhat
My hon. Friend is absolutely right to raise that. It is not specific to this Bill, but it is something that many of us have been considering for a while. I certainly agree that wider consideration is important in ensuring that those who have legitimate grievances and objections to what they may have been asked to do have a valid route for raising such questions.
I will go through a few of the other points very quickly. My right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and my hon. Friend the Member for Burnley (Antony Higginbotham) raised the point about legal services, and they were absolutely right to do so. Let me be quite clear that this is about privileged legal co-operation. Therefore, that privilege should be exempt—it should absolutely be exempt—so that those who have access to legal rights should be able to exercise them without the state’s intervention. That is essential to the rule of law and, indeed, to the protection of human rights in our country.
I should also make it quite clear that the Government have heard very clearly the points made about civil legal aid. These will be receiving very serious consideration in the coming days, and I look forward to updating the House in due course on where that goes to.
I briefly thank for their insights my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) and my hon. Friend the Member for Milton Keynes North (Ben Everitt) on the Government side, and of course my very dear friend, the hon. Member for Barnsley Central (Dan Jarvis). Although we disagree, again, he remains a very close friend, and I look forward to discussing more of these issues with him in the future. I shall leave it at that.
Question put and agreed to.
New clause 9 accordingly read a Second time, and added to the Bill.
New clause 3
Reviews of Parts 1, 4 and 5
‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.
(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.
(3) The operation of Parts 1 and 5 must be reviewed by either—
(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or
(b) a different person appointed by the Secretary of State.
(4) Reviews under this section must be carried out in respect of—
(a) the 12-month period beginning with the day on which any section in this Part comes into force, and
(b) each subsequent 12-month period.
(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.
(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.
(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.
(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the “expenses” and “allowances” mentioned therein may include the discharge by the person or people of their functions under this section.’—(Holly Lynch.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Tom Tugendhat
I beg to move, That the Bill be now read the Third time.
It remains for me to thank enormously my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who did so much to get the Bill to the right place; my right hon. Friend the Home Secretary, who has very graciously left me to get on with this; and all the Members who have been so helpful.
My great thanks go to the intelligence and law enforcement agencies in particular. Their extraordinary courage and skill have earned more than my admiration, respect and gratitude for many, many years, but never more so than in the last few weeks, in which I have been privileged to serve them.
It is worth pointing out very quickly one or two elements of the Bill that I have not yet had the chance to touch on. Let me make it absolutely clear that there is no possibility—no way, no desire, no intent—that any area in this Bill, or in any other that this Government would pass, would in any way diminish the unqualified right not to be tortured. That is an absolute right that this Government and, I know, other Governments, would all hold to. I should be absolutely clear that not only is there is no desire in this House for that to change, but there is no such desire in any of the services and agencies with which I have had the privilege of discussing it.
What our Government, our agencies and those who hold office in our name all know very well is that they are defending our rights and freedoms when they defend the rule of law. They are absolutely championing the values and liberties that matter to us. In the Bill, we are evolving from trying to stop spectaculars such as the tragedies that hit on 9/11 to employing spectrometers—finer points of detection—to try to ensure that we eliminate risks that come in different ways. That is why I am so grateful to them all for the advice and help they have offered to ensure that the Bill is structured as it is.
I should make it quite clear that the Bill has opened up an area in which we will need to go further and in which I am glad the Prime Minister has asked me to go further: the defence of democracy. Our democracy in this country has sadly been under attack for too long. We are not alone; we know that our friends in other parts of the country and other parts of the world have faced similar attacks and similar areas of influence. I am delighted that the taskforce that the Prime Minister has asked me to lead will get on with its work very shortly, updating the integrated review and helping to ensure that this country is ready for the changes in the threats that we face so that the ultimate sovereignty of our people—the right to choose—is guaranteed and defended long into the future. That means that we have to set up not just powers to empower those agents who work in our name, but the guardrails to defend that right.
I am very glad that the Bill includes such provisions as the requirement for the Attorney General’s consent—the Advocate General’s in certain cases—to make sure that none of the powers is abused in any way. I am delighted that we have got that in the right place, because we know, sadly, that abuse is always possible.
I will end with the words of Ken McCallum, the director general of MI5, who today was very supportive of not only the Bill but many of the measures that his service has been carrying out. He has been inspirational in his leadership of his service and his defence of the United Kingdom, so I am delighted by his welcome for the foreign influence registration scheme, describing it as
“a modern power designed to tackle a modern threat”.
He is absolutely right, and the scheme is essential. For those reasons, I am grateful for the support we have had from the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), and other Members across the House.
Madam Deputy Speaker
I thank the hon. Lady and the right hon. Lady for their points of order. Obviously I do not know the background to this case, but I can see that it is a very serious issue. Government Ministers are present and I think the Minister for Security may wish to intervene.
The Minister for Security (Tom Tugendhat)
Further to that point of order, Madam Deputy Speaker. I am sure that I speak for the Immigration Minister and the Policing Minister when I say that they will both look into it very carefully. I am sure they will return to answer these questions.