National Security Bill (Fifth sitting)
Lord Beamish ExcerptsThursday 14th July 2022
(4 years ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 July 2022 - (14 Jul 2022)
The Minister for Security (Stephen McPartland)
Although the Bill provides a range of offences specifically targeted at state threats activity, it will not always be appropriate or possible for harmful activity to be prosecuted under the Bill. Where offences already exist on the statute book that deal effectively with the relevant state threats activity, there is no need to create a similar offence in the Bill. For example, the offence of murder deals effectively with state-sponsored assassinations.
While the Bill provides a suite of offences and accompanying tools and powers, there remain cases in which it will be difficult to secure prosecution due to the covert nature of the activities and the difficulties involved in presenting admissible evidence to a court to illustrate all the components of an offence beyond reasonable doubt. In some cases, however, it might be possible or more appropriate to charge the individual with another offence on the statute book.
The aim of the aggravating factor in clauses 16 to 18 is to ensure that in such scenarios the state threats element is acknowledged in court and offenders are sentenced accordingly. The state threats aggravating factor will apply in cases where the foreign power condition—to which I have referred a number of times in Committee—is satisfied. Currently, if someone is convicted of an offence and it is known that the offence was linked to state threats activity, the judge may take that into account, but there is no formal mechanism to require the judge to factor that in when making a sentencing decision, and there are no clear definitions to enable the court to apply that consistently. This is in contrast to terrorism, where there is already a statutory requirement to acknowledge a terrorist connection when considering the seriousness of certain offences. That has been effective in cases such as those of the murder of Jo Cox MP, and Lee Rigby, where the seriousness of the offences was aggravated by the sentencing judge because of the terrorist connection, so a higher sentence was imposed.
The Government believe that the state threats aggravating factor should be available in relation to any offence. A state threat is a unique national security threat that can take a wide range of forms. We must ensure that our justice system is able to acknowledge all forms that such activity might take, and be able to penalise it accordingly.
Clause 19 ensures that the aggravating factor can apply to those who are convicted of offences in service courts. The service courts system applies to those who are bound by the Armed Forces Act 2006—for example, serving members of the armed forces. The state threats aggravating factor will apply in the same way in service courts as it does in civilian courts, in that if an offender pleads guilty to or is found guilty of an offence—for example, theft—and the foreign power condition is met, the offender’s sentence will be aggravated accordingly.
Mr Kevan Jones (North Durham) (Lab)
I support the proposals. My concern, which is one I will express throughout the passage of the Bill, is the Bill’s relationship with the Official Secrets Act 1989, under which the maximum penalty is two years. The Minister or his officials might not know the answer now, but I am happy for him to write to me. How will the two Acts intersect? Clearly, if someone has committed an offence, they will want to be found guilty under the Official Secrets Act, under which the sentencing powers are limited, as opposed to under the Act that this Bill will become. That will be the problem with the Bill—I still cannot understand why the Government did not do both: what they promised, which was the full reform, and a Bill for a new Official Secrets Act.
Stephen McPartland
As the right hon. Gentleman knows, we are reforming the first three Official Secrets Acts, but not the 1989 Act, with the Bill. We will write to him with the information to explain how that is going to work.
In summary, the aggravating factor provides another tool for prosecutors to deploy, and helps to future-proof the Bill by ensuring that our judicial system can respond to any evolving state threats and activity in the future.
Stephen McPartland
Robust investigative tools are crucial to enable the police effectively to counter threats by state actors, which operate using highly sophisticated means and often have access to significant resources and are skilled in tradecraft.
Clause 20 introduces schedule 2, which provides the police with powers of search and seizure when investigating threats posed by state actors to the UK and its interests. These powers replace the power of search in section 9 of the Official Secrets Act 1911.
Under the existing powers and those provided in schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed. This threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity.
Mr Jones
Can the Minister clarify what he means by “reasonable”? I know what it means in law, but I also know that there is a reasonableness test in the existing section 7 of the Act, which the security services say is not enough? So why is it okay here and it is not okay when it comes to clause 23?
Stephen McPartland
The difference is that under the Police and Criminal Evidence Act 1984, or PACE, the police need to be able to identify in this situation that a crime has been committed, whereas for this measure the police are trying to intervene earlier, so that they can stop a crime from being committed. Effectively, that is what the difference is.
We will debate clause 23 when we get to it—
Stephen McPartland
No. [Laughter.]
As I was saying, clause 20 introduces schedule 2 to the Bill. Under the existing powers and those provided by schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed.
The threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity. General search and seizure powers, such as those provided under PACE, are comparatively restrictive because they do not allow the police to act pre-emptively when there is intelligence to indicate that an offence is about to be committed. So, both the Ministry of Justice in 2014 and the Law Commission in 2020 reviewed the existing power, concluding that it was necessary and that reliance on PACE powers alone would limit the ability of the police to disrupt and investigate state threats.
These powers may only be used to deal with the most serious offences covered by this Bill, as well as where state threats activity involves violence or constitutes a serious threat to life or public safety.
Turning to the powers themselves, part 1 of schedule 2 legislates for powers of search and seizure as they apply in England, Wales and Northern Ireland. They provide for the police to gain access to material likely to be evidence of a relevant act, which covers specific offences or certain acts or threats under the Bill.
Where the relevant act has been, or is about to be, committed the powers in part 1 of this schedule are different, depending on the nature of the material sought to reflect the enhanced safeguards that are required to protect confidential material.
Under paragraph 2, for non-confidential material, the police can obtain a warrant to enter and search premises and to seize and retain material. There are two key conditions that a court must be satisfied are met for such a warrant to be granted: first, that a relevant act has been, or is about to be, committed and, secondly, that the material sought on a premises is likely to be evidence of that act and is not confidential material. Should the police apply for an all-premises warrant, an additional condition applies: it must not be reasonably practicable to set out all the premises that the person of interest occupies or controls, but that may need to be searched. To access confidential material, a production order must be obtained, should this course fail or be unavailable through a warrant.
Mr Jones
It is a pleasure to serve under your chairship, Ms Ali. I have some sympathy with the amendment as I am always against things that give Ministers or the Executive broad powers. As my hon. Friend the Member for Halifax has already said, the powers seem to be unlimited. We are talking about national security and the confidence that we should have in our agencies to act in our interests, with the best of intentions and proper oversight, so the amendment is important. What does “any site in the UK” mean? My hon. Friend said that that was quite a broad power, and I want to ask about sites in the UK that are not under the control of the UK Government, such as US sites. Could Mildenhall airbase, a US airbase in the UK, be designated as one of these sites? I raise that because it limits UK authorities’ oversight and jurisdiction.
People may ask why that is important, but I am very conscious that we should always ensure that civil servants, Ministers and others have historical knowledge and take into account what happened in the past. I served on the Intelligence and Security Committee when we did our inquiry into detainee mistreatment and rendition in 2018. I have to say, it did not make for pretty reading. We did not shy away from the facts, and the actions of our agencies and certain Ministers—including some Ministers in the Government I served in—did not come out of that report very well. Guidance and regulations were put in place to ensure that did not happen again. I would like some clarity about whether such bases could be designated under this measure? Some of those sites could potentially have been used for what the ISC report on rendition highlights. They certainly were abroad, but this is about sites that are actually in the UK.
Stephen McPartland
I looked at the amendment in a lot of detail, and I discussed it with my officials and challenged them. I think the hon. Member for Halifax makes a very, very important point and has a strong case, and she will be delighted to know that, although I will resist the amendment today, I will commit to consider it and whether the Bill should clarify that only sites located in the UK can be designated as places of detention. I share her concerns about the possibility of rendition and stuff outside the UK. I will go into a bit more detail for her, and hopefully that will help the right hon. Member for North West Durham—
Stephen McPartland
I am always happy to take away the hon. Lady’s suggestions.
My initial concern with the amendment is that, as drafted, it adds little value, just a statutory requirement for Her Majesty’s inspectorate to fulfil a role it is doing already. I note all the concerns of hon. Members, however—
Stephen McPartland
I have given the right hon. Gentleman the blink and he still wants to intervene.
Mr Jones
It takes a lot to get that in a Bill Committee. My hon. Friend the Member for Garston and Halewood is right—this needs clarifying in the Bill. When the Minister goes away to think about it, will he look at and ask officials about the issue of those sites that are in the UK, but outside the control of Her Majesty’s Government? I will not say too much, but we occasionally work with organisations and countries in certain places in the UK, but do not control what goes on there. Will he reflect that when doing his work?
Stephen McPartland
I will come back to the right hon. Gentleman on that. As I have said, we will be designating sites and that information will be publicly available. I am not sure that he would want to make the information about the sites he mentions publicly available.
Mr Jones
But that is not what the Bill says at the moment, as my hon. Friend the Member for Garston and Halewood said. It gives sweeping powers to designate things, and I am always against giving such sweeping powers to the Executive—whether it is the present Government or the Government I was a member of—or to anyone. When the Minister comes back, clarification would be welcome, even if that is for the Bill to require publication.
Stephen McPartland
I hear what the right hon. Gentleman says. If the hon. Member for Halifax is kind enough to withdraw the amendment, I commit to considering it further. I will look to provide further clarity in the legislation.
Stephen McPartland
Under schedule 3 to the Counter-Terrorism and Border Security Act 2019, counter-terrorism police have the power to stop, question and, if necessary, detain and search individuals travelling through the UK border. As part of a schedule 3 examination, counter-terrorism police are able to retain protected materials by following a lengthy authorisation process. Protected materials include confidential business and journalistic material, as well as legally privileged material. The powers are a vital tool for counter-terrorism police and form part of a range of national security checks that enable the determination of whether a person at a UK port or border area has current or previous involvement in hostile state activity.
The use of protected materials in investigations, particularly confidential business material, can be a helpful insight into a person’s involvement in hostile state activity, whether it be espionage or a disinformation campaign. To use protected materials seized during a schedule 3 examination, an examining officer must currently seek authorisation from the Investigatory Powers Commissioner, who is a serving or retired High Court judge. In most cases, the material must not be examined or used for investigations until authorisation has been granted. Currently, that can take up to six weeks.
Clause 22 will remove the definition of confidential business material—material defined as acquired in the course of trade—from the definition of protected material under schedule 3. This will remove the requirement for the Investigatory Powers Commissioner to authorise the retention of copies of confidential business material. The Bill will replace that authorisation process with a new safeguard: the requirement for a counter-terrorism police officer of at least the rank of superintendent to authorise access to such material.
The clause will bring the schedule 3 safeguards for confidential material into line with those that apply to schedule 7 to the Terrorism Act 2000. It will mean that police do not face lengthy and unnecessary delays to examining material in a schedule 3 stop.
Mr Jones
I have some sympathy with this clause; the Investigatory Powers Commissioner has a big job on their hands anyway. I wonder whether the Minister could say whether he has given any thought to the Investigatory Powers Commissioner not just looking at the material and giving it authorisation but having retrospective powers to dip in and see whether things have been done correctly.
Stephen McPartland
I will take that idea away and consider it. We do not want to enable somebody at the border to say that something is confidential material so that the police cannot look at it for up to six weeks. That would just be the easiest defence. We are dealing with incredibly sophisticated experts and they will know what to say to ensure that the material will be held in abeyance.
The Government are only amending the safeguards for confidential business material and will not change the authorisation safeguard for other material within the definition of protected material or confidential journalistic material, for which judicial authorisation is a proportionate safeguard. I am sure Members agree that it is only right that the security services should be able to use critical information in real time during a schedule 3 examination to address live national security risks posed to the UK. I assure Members that this essential amendment to schedule 3 to the 2019 Act will strengthen and streamline state threats investigations to disrupt and deter hostile state activity.
National Security Bill (Sixth sitting)
Lord Beamish ExcerptsThursday 14th July 2022
(4 years ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 July 2022 - (14 Jul 2022)
The Minister for Security (Stephen McPartland)
This is the clause that many of us have been looking forward to. I am not going to take interventions during my speech; I will set out the reasons why I believe the clause is correct, then I will listen carefully to speeches from hon. Members and then sum up.
Collaboration with key international partners is a vital part of intelligence and national security work. We cannot maximise our national security capabilities and keep people safe without sharing intelligence and benefiting from the capabilities and expertise of our close and trusted allies. Those individuals who work on behalf of the UK are highly skilled and experienced in ensuring that UK activity is necessary and proportionate. Domestic and international law is applied to all activities and there are robust safeguards in place.
The Serious Crime Act 2007 creates offences when an act is done that is
“capable of encouraging or assisting”
an offence and the person “intends” or believes that their act may encourage or assist an offence. Those offences, which were predominantly introduced to ensure that law enforcement had the tools to tackle those orchestrating serious organised crime, are complex and create an incredibly low threshold for liability. There is no minimum level of contribution to the offence that may be encouraged or assisted. The contribution can be small, it can be indirect, and there is no need for an offence to be ultimately committed.
At present, the UK intelligence community and armed forces are required to apply those complex offences to the many and varied scenarios in which they work with our international partners to help protect the UK. They exercise significant caution in their engagement with partners to prevent SCA thresholds being met and the risk of liability for individuals being realised. The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through.
There is also an important point of principle here. The Serious Crime Act offences mean that it is the individuals working within intelligence, security and military organisations who carry the risk of liability, despite operating within all authorisations and in the interests of UK national security.
The Committee heard oral evidence from both Sir Alex Younger, the former head of MI6, and Sir David Omand, the former head of GCHQ, on the fairness and appropriateness of individual officers carrying this risk. They believe that the liability risk sitting with individuals is “not right”, and is “morally wrong”. The Government agree with them and do not think it is right or fair to expect the risk of liability to sit with individuals who are acting on behalf of our intelligence services or armed forces for their authorised purposes. Instead, responsibility should sit with the UK intelligence community and the armed forces at an institutional level, where they are subject to executive, judicial and parliamentary oversight.
The clause removes criminal liability for offences of encouraging or assisting crime, but only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces in support of activity taking place overseas. This is not a broad general immunity from prosecution; rather we are amending a targeted piece of legislation in response to specific operational issues that are impacting the ability to keep us safe today.
The clause means that in instances where an individual has operated in good faith and in compliance with proper processes they would not face the risk of liability for the offences under the SCA. The risk I have outlined would be removed for activity that we ask of individuals in the course of their roles in keeping us safe.
I am confident that the SCA amendment is appropriate and proportionate, because the UK has one of the most rigorous intelligence oversight regimes in the world. There are myriad safeguards and processes in place that manage the way that UKIC and the MOD work with and exchange information with international partners to prevent potential wrongdoing.
I also have confidence in those we are providing protection to. They are expert and highly trained men and women undertaking intelligence and security work, whose judgment and skill we should respect and have faith in. Of course, those working with our international partners will still need to comply with all other domestic and international law and be beholden to the statutory frameworks and policies that govern the UK intelligence community and armed forces activity.
The policies include the overseas security and justice assistance guidance and the Fulford principles, the implementation of which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. That means that clause 23 does not in any way make torture legal, for example. UKIC’s activities also remain under the regular inspection of the Investigatory Powers Commissioner’s Office—
Stephen McPartland
I am not giving way. And they are regularly scrutinised by the Intelligence and Security Committee.
Holly Lynch (Halifax) (Lab)
It will come as no surprise to the Minister—we have had the opportunity to discuss this—that we are extremely concerned about clause 23, which amends the Serious Crime Act 2007. We have had the opportunity to discuss this privately with the Minister and his predecessor, and with the UK intelligence community directly, and I am minded of just how much detail of those conversations we might want to put on the record. The clause was a big focus for Members from across the House on Second Reading. As the Minister knows, crucially, it did not have the support of members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community.
The Labour Party will always work with the intelligence services to find solutions to any barriers that they face in undertaking their invaluable work and keeping the UK safe. As things stand, we have been unable to get an operational understanding of exactly what is broken and requires fixing. I have heard directly from the security services about why they believe they need clause 23—the Minister has sought to outline that again in his contribution. Schedule 4 to the Serious Crime Act allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community. An offence can arise where support—for example, intelligence sharing—provided in good faith later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact that requires a resolution.
Mr Jones
My hon. Friend is outlining the protections. SIS and GCHQ staff also have protection under section 7 of the Intelligence Services Act 1994, where there is ministerial authorisation. Like her, I struggle to understand what incidents there could be of an individual being liable, if they were covered by these authorisations and the Act that she refers to.
Holly Lynch
My hon. Friend makes an important point, which I will explore in more detail in a second. I go back to the point that the security services have conveyed to us that their caution is having an operational impact, which requires a resolution. We are sympathetic to that. We recognise that a junior member of staff facing that burden of potential liability when carrying out their proper functions under instruction does not feel right. However, I look to the Minister to find a way through the matter that does not involve what can feel somewhat like a gold-plating of exemptions for the security services, which stands to entirely erode appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners. As the Minister knows, there is an existing reasonableness defence in section 50 of the Serious Crime Act, which recognises that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.
Holly Lynch
I am grateful to my hon. Friend. As a lawyer, she has a great deal of experience navigating some of this legislation, and she makes a powerful point about the reasonableness defence. In addition, a prosecution would have to be deemed to be in the public interest.
Mr Jones
This morning we saw the Minister use reasonableness in clause 20, but he is not prepared to use it here. Does my hon. Friend agree that reasonableness in law is a well-established notion? Does she find it odd that the Minister relies on it in one clause, but in this one he prefers to say that it will somehow not work?
Holly Lynch
My hon. Friend makes the point that, while we will get into the detail of reasonableness and the concern that it is potentially untested in these circumstances, it is a well-established principle across British law. Again, that certainly supports the robustness of the existing defences around reasonableness. On further probing of these defences, and this is exactly his point, it seems that it is not the case that the reasonableness defence is not strong enough, rather that it is untested in these specific circumstances, as no such case has been brought against the intelligence community. We do not believe that that is a strong enough case for the proposals in clause 23. We hope that properly authorised activity to protect national security would and should be interpreted as being reasonable.
I am not currently satisfied, and neither are members of the Intelligence and Security Committee, who we will hear from shortly, that there are grounds to support clause 23 as drafted. I have taken further legal advice, including from a QC with a great deal of experience of the Investigatory Powers Tribunal. Can the Minister answer the following questions? First, as has been said by the hon. Member for Garston and Halewood, given that we already have section 7 of the Intelligence Services Act—this relates to the serious end of some of what we are talking about here—which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad, why do we need these changes?
Importantly, the existing scheme requires the UK intelligence community to secure permission from the Secretary of State in advance, requiring their personal approval, with safeguards within the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge.
Ben Everitt (Milton Keynes North) (Con)
I understand that clause 23 seeks to address a specific operational challenge currently faced by the UK intelligence community and the armed forces. The clause removes criminal liability for the offences of encouraging or assisting crime, but only where that activity is
“necessary for—
(a) the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ, or…the armed forces”
and only in support of activity taking place overseas. That is because in a specific scenario legislation is affecting the ability to collaborate with key partners and achieve legitimate shared national security objectives.
Essentially, we are trying to avoid there being a disincentive to sharing information that makes us safe. Looking at it the other way, we are trying to remove the liability from a brave young officer who is doing their job and keeping us safe.
Ben Everitt
That is probably beyond what I can say here, and indeed beyond what I am aware of. It is one of those situations in which, were I a Minister, I would be happy to write to the hon. Gentleman—but I am not. Far from gold-plating, as referred to by the hon. Member for Halifax, clause 23 does not create a blanket criminal law immunity for our intelligence officers. It does not change the application of other criminal law offences that overlap with those underneath the Serious Crime Act 2007. It provides no change to the UK’s international law obligations.
I assume that the Minister agrees that the approach undertaken in the Bill is more limited and targeted than the approach other key allies have deemed necessary to protect those working on their behalf. Indeed, last week we heard from Alex Younger, the former chief of the Secret Intelligence Service. During his oral evidence he noted that there is an international precedent for such measures. He was referring to Australia; I understand that it was section 41 of the Australian Intelligence Services Act 2001, where there is a much broader immunity. That Act states:
“A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.”
Clause 23 is much more limited than that example. Rather than a proposal for wholesale immunity, it will just remove the legal risk for individuals’ actions that are done in good faith and following all authorised processes. That risk should not be underestimated given the chilling effect that we have discussed over the past couple of weeks. That effect can prevent or even delay the sharing of critical intelligence with international partners. Thus, the line of argument that the provision is too broad does not really hold when considered in the context of what our key allies are doing in relation to sharing information.
I express my support for clause 23, and the core principle that this is the right thing to do. We do not expect the current criminal liability of the Serious Crime Act offences to sit with trusted individuals who are conducting authorised, highly sensitive and vital national security work to keep our country safe.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I rise to support a lot of what the hon. Member for Halifax has said already. Nobody on the Committee doubts the importance of collaboration; we all recognise how crucial that is. I do not think that any of us doubt that the services have approached the Government having identified what they perceive to be a problem, and that the Government are genuinely engaged in trying to resolve that. One of the challenges that we face as parliamentarians is the degree of confidentiality and secrecy that surrounds their operations, which sometimes makes it difficult for us—particularly if we are not members of the Intelligence and Security Committee—to properly understand the nature of the problem and how it can be resolved.
Stuart C. McDonald
I am grateful to the right hon. Gentleman, who is a member of the ISC, for clarifying that. For that reason, I am not dead set in my opposition to the clause by any stretch of the imagination—I am open to persuasion. However, we need evidence through the ISC that there is a problem and that clause 23 is the best way to solve it. As matters stand, I cannot say that I have been persuaded of either of those things.
First and foremost, it remains difficult to see how officers of the services in question can commit an offence under the 2007 Act unless they intend an offence to be committed, or, secondly, unless they have a belief that their action will assist an offence. That is a high threshold, even before defences kick in.
We have heard already that the section 50 defence of acting reasonably applies. Given the “purpose” and “authority” under which any action of information sharing would take place, it surely seems very likely that that defence could easily be made out. That point has already been made by a member of the ISC this afternoon. It almost looks like that defence, in section 50(3) of the 2007 Act, was designed with employees of the agencies in mind. The Minister has asserted that the defence is vague, but they seem to be a perfect fit for some of the circumstances that we are considering.
Even if the Minister is correct, perhaps the better response would be to amend the defence, rather than disapplying schedule 4 altogether. It is not clear why it can be argued that the reasonable defence is any more vague than the concept in this clause of
“the proper exercise of any function”.
It is not clear to me what conduct that concept is and is not supposed to cover. We need clear explanations and I do not think we have been given them.
Will the Minister give an example of conduct that is a proper exercise of any function of the services, but that is currently subject to the chilling effect of the 2007 Act and would therefore be saved by the Bill? Why is such conduct not able to get over the threshold of the reasonable defence already? Why, as has been asked, is such conduct not able to be authorised under section 7 of the Intelligence Services Act 1994? What type of data sharing is subject to this chilling effect and what causes that effect? Is it the remote possibility of data being used for a very serious crime or the significant chance it could be used for a less serious crime? Is it both? Is it neither? It is very hard to get a handle on what precisely the provisions are aimed at.
The Minister knows that concerns were raised on Second Reading about the potential for the clause to have a much more significant effect on actions that could, for example, support rendition or torture. He has set out today and in correspondence that domestic and international law means that such action would not be protected by clause 23. We will give that further consideration, but, in my view, the Government have much more to do to persuade us that there is a real problem here, and one that requires legislative intervention.
Even if a problem does have to be addressed, I am still to be convinced that this is the right response. Are there other options we could look at? Of course there are. For example, in last week’s evidence there appeared to be the suggestion that it was not so much the risk of conviction that was feared, but the risk of an investigation and being dragged to the courts and having to establish a defence of reasonableness. That was one of the problems.
Different things could be done. The clause could be moved around so that it is not a defence, where the burden lies on the person accused. We could make it an intrinsic part of the offence in the first place, so that nobody is dragged to court and has to establish the defence. There are other things that could be done—for example, requiring certain authorisations for prosecutions and so on.
Let us have that discussion, assuming that we can be persuaded that there is a problem here. Are there different ways to address it? For the moment, we remain a little bit in the dark on what precisely the nature of the problem is, and are unconvinced that the provisions in the clause are the best way to resolve any problem that does exist.
Mr Jones
I thank the Minister for reading his speech very well, but I take issue with the implication of what he said at the end, and I feel a bit annoyed about it.
The implication is that if someone ask questions about clause 23, somehow they are not supportive of our security services. I am the longest serving member on the Intelligence and Security Committee and a former Defence Minister, and I think most people who know me in the House know that if I am anything, I am a supporter of our security services and defence forces. It is therefore a bit churlish for people to argue that asking questions somehow means that I want to inhibit the work of our defence and security services; I certainly do not.
Having been on the ISC since 2017, I am aware of the bravery involved in the difficult jobs of our security services. I never cease to be amazed when I hear about some of the things they do. The general public would have no idea of the difficult judgment calls they sometimes have to make.
However, I am also a big supporter of proper oversight of our security services. We have the ISC, the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, and that is the web we have in our democracy to ensure that the security services operate legally and that they are supported in what they do. In fact, the director general of MI5 often says in front of the ISC that those three organisations give it the legitimacy to operate. That is a good thing in a democracy, and I agree with him.
What worries me is the justification for why clause 23 is needed. We have heard it before, but we just heard the hon. Member for Milton Keynes North use the phrase “a chilling effect”. In their evidence, Sir Alex Younger and Sir David Omand also supported this provision. I have huge respect for those two gentlemen: they are good public servants whose service has done this country a huge amount of good. However, from reading the transcript—I was abroad when they were here last week; I apologise—I do not quite get the point that they were getting at. They used words, which have just been used again, such as principles and morals, and the idea that the onus somehow lies on the individual officer.
If that was the case, I would totally agree that the onus should not be on the individual officer because, having seen what they do, I know they have to make key judgment calls. In their evidence, I do not think that Alex Younger or David Omand gave us any examples of why this measure is needed.
Ben Everitt
I have been listening carefully to the right hon. Gentleman. He mentioned oversight as a key part of the functions of our security services. I waited for him to develop the point further into liability, which is what we are discussing here. Will he elaborate on what he means in relation to oversight when, I think, clause 23 specifically refers to liability?
Mr Jones
It is about both. I will come to liability, because I do not think that individual officers are liable due to existing legislation. As for what I mean by oversight, I am clear that the structures we have for the authorisation of things that are not pleasant should include oversight—whether from the ISC, the tribunal or the Investigatory Powers Commissioner. We do not live in a society—thank God—where Ministers and the Executive can just say to the security services, “Do x, y and z.” That would be wrong. That is why it is important to have oversight and checks and balances in the system, which were not always there. This morning, I referred to a very sad time in our history—I was a Minister at the time. It was not a good time for our security services, and we should have been ashamed of some of the things that were done.
I want to see an example of what Sir Alex Younger and Sir David Omand were talking about last week. If there is a specific problem, I would be sympathetic and say, “Right, we need to get that sorted.” It may be a broad notion. We are talking about principles and morals, and it is very difficult to legislate on morals—certainly the Conservative party gets into difficulty when we talk about morals—but I would like to know specific examples that would lead to a liability.
Let me turn to the existing protections. Schedule 4 to the Serious Crime Act 2007 includes the offence of encouraging, assisting or commissioning an offence abroad. Clause 23 amends schedule 4 of the Serious Crime Act to disapply that offence when the activity is deemed necessary for the proper exercise of a function of an intelligence agency or the armed forces. The Government are basically asking for a carve-out, which I find extremely rare.
Maria Eagle
Does my right hon. Friend agree that putting in legislation a carve-out from an entire class of offences—in this case, the inchoate offences of crimes committed abroad—engenders more suspicion among those who worry about the intelligence services than would be the case if the law applied properly to them with appropriate defences?
Mr Jones
I do. Since I have been on the ISC, I have always been amazed when I read accusations made in this place or in public about what the security services get up to. Frankly, if they did, good—but, given the scope of their ability to do things, we should bear in mind the difference between fact and fiction.
The important point is that what the security services do must be proportionate, legal and in the interests of this country’s national security. As I say, they have to take some difficult decisions, and there is a difference between a ministerial authorisation to do something and what happens on the ground. The Minister is not sat there with a pen, saying, “No, you can’t do that. You can do that.” It is down to the individual officer, and I accept that there are huge issues around that. That is why we had the consolidated guidance, which then developed into the Fulford principles. That came out of that dark time.
I was on the ISC when we did our very long inquiry into detention, mistreatment and rendition in 2018, and it was not pretty reading. Ministers—in some cases, we named them—took decisions that were not legal. I have been assured by the agencies in evidence that I and the ISC have received that the consolidated guidance has since been updated to the Fulford principles, and a large exercise has been undertaken to ensure that all officers at all levels understand the principles and how to enact them.
That gives us that legal protection. There are people who want to attack our security services. That large exercise gives me huge assurance, and it means that parliamentarians are in a strong position, when people start accusing the security services, to stand up and say, “Well, actually, that is rubbish. These are the rules that we follow, and they are of the highest standard.” They protect not just the work that the security services do, but us as a country.
Carving this out worries me, as it does my hon. Friend the Member for Garston and Halewood. The Government want to disapply the measure, but there is already a reasonableness protection. We discussed reasonableness this morning. Section 50(3) of the Serious Crime Act 2007 sets out that:
“Factors to be considered in determining whether it was reasonable for a person to act as he did include…any purpose for which he claims to have been acting”
and
“any authority by which he claims to have been acting.”
I think that is very clear.
If we now have a situation whereby the agencies and armed forces are concerned that the conduct may not be reasonable, it is difficult to see how it would be deemed necessary for the proper exercise of the functions of the intelligence services or military. The reasonableness test is there and, as I have already said, we have other protections whereby the Secret Intelligence Service and GCHQ also protect their staff from liabilities in relation to offences committed abroad through ministerial authorisation under section 7 of the Intelligence Services Act 1994. The important thing about all that is whether the Investigatory Powers Commissioner can ensure that it is done properly.
To get back to the point, what is the problem? I do not see it. Call me old-fashioned, but if there is a problem, I am up for solving it. However, I do not think that we should try to change things if there is not a problem, and none of the agencies has yet come forward to explain in detail what the problem is.
I accept what was said earlier about the ISC. The individual examples, if there are any, will cover highly classified information—that is why the ISC is there: we can take evidence and look at that information—but there has been no attempt at all by Government Ministers or the security services to give us the examples. One of my colleagues will speak in a minute, but I speak on behalf of the ISC, because we have discussed this issue. We cannot give clause 23 a nod through at this point until we have been convinced that there is a need for it.
My hon. Friend the Member for Halifax made a point about scrutiny. The great thing about having the Investigatory Powers Commissioner is that they can look at warrants and ensure that they are not just legal but proportionate. If we have this provision, who will oversee the individual cases? I get the point that the two former heads of security services made in their evidence about the onus being on the individual. Yes, it is, but those individuals rightly have a huge degree of protection. I would not want to see that in any way diminished because they have the law behind them. In some cases, they also have ministerial warrants, which add to the judicial process.
For those who say that if someone ask questions about this provision, they are against the security services, let me put it the other way. If it is not justified, it will be used as a way to say that the security services now want to go back to the bad old days when things happened that were not under the scrutiny of either Parliament or the judiciary. That would be a retrograde step and would give opponents—as I say, they are against whatever the security services do—a stick to beat them with. I am certainly not in favour of giving those people anything with which to beat the security services.
We could vote against the clause, but I do not think that is the right way forward. I and other members of the ISC would like the Government to provide us with examples of where the chilling effect has been a problem for intelligence sharing, so that we can at least have a look. I accept that other members of the Committee might wonder why they cannot see it—trust me when I say, “You can’t.” I think most people would understand the reasons why that is.
Stephen McPartland
I wanted to be very clear earlier—I wanted to make a point. I agree that the Government will give the ISC examples.
Mr Jones
That is very welcome, but we do not just want that in writing—we want to have the agency heads actually come and speak. I think we have a meeting with them scheduled for some time in October. We would like to get them to come and argue why they need these changes. We need that as well.
The Minister might need to give it a bit more thought, too. I accept that he is new to his post, and he obviously has time to look at this over the summer—depending on what happens at the beginning of September. I know that I have poked fun at the Minister, but we get on well, we have worked closely on other Committees and I even got him promoted on a Committee once, which he was eternally grateful for. Can he just look at the oversight, too? If the Bill does go through, what are the oversight mechanisms for it?
Maria Eagle
I will not go through all the points that have already been made, although I do feel quite strongly about some of this. I generally endorse what has been said by my hon. Friend the Member for Halifax and my right hon. Friend the Member for North Durham—my fellow member of the ISC. Like him, I do not think it is true to say that anybody on this Committee or any of our parliamentary colleagues are intent on trying to stop the intelligence and security services doing their job. They do a very important job and they do it very well. It is dangerous work and we want to support them as much as we can.
But we are a democracy. One of the things that concerns me about clause 23 is its wholesale disapplication of an area of the law that applies to all the rest of us. If we are going to do that for the intelligence services, it is important that we are very clear that it is necessary. It applies only for a certain type of offence in a certain place—overseas—but it is a wholesale carve-out. The clause says that an entire schedule to the Serious Crime Act 2007, which sets out inchoate offences abroad, does not apply if “any relevant behaviour” was necessary for
“the proper exercise of any function”
of the relevant services. That is a wholesale carve-out. I cannot think of too many other examples of that. I do not know if the Minister has a list of examples of other wholesale carve-outs from liability from the criminal law for particular officers of state organisations, but I think it is quite rare.
In those circumstances, I could tell from the evidence we were given that the Government have been asked for this by the relevant services. It did not seem to me that it was coming from the Government—that the Government were saying, “You must have these extra powers.” I accept that they are responding to requests, but because this is a wholesale carve-out from liability for criminal acts, it is important that it is properly justified. We all know about the difficulties of properly justifying it, because a lot cannot be brought into the public domain, but what we have had in the public domain has not been very convincing.
I expect that many people in their day-to-day life would like to have impunity from criminal liability for something that they might do, but it is not something we should be granting easily. The arguments for it need to be very strong. There are already defences that make it harder for people working in the intelligence community to be found guilty of some offences. They have defences that others do not. By the way, it is probably philosophically right that the law should apply to those people but that they should have extra defences. In legislative terms and for the good of society as a whole, it is probably better to do it that way round than to disapply the law to a particular type of person.
I would expect to hear why the current arrangements do not work, but I have not heard that. I did not hear it in the evidence we took from Sir Alex Younger and Sir David Omand. If I can characterise the issue in this way, they both said, “We would rather have this. We feel very strongly that we would rather have this,” but they were unable to give us any examples of why the current arrangements did not work. In fact, I asked Sir Alex whether some of the current arrangements worked. I asked him about the ministerial authorisation, and he just told me that he was not a lawyer, which is not a convincing answer when someone is asking for a whole area of the criminal law to be disapplied. Sir Alex obviously felt strongly about the matter—I could see that. That is perfectly legitimate, but as a scrutiny Committee and as parliamentarians, we need to hear a little bit more.
I hope the Minister will understand—I do not particularly like the fact that he refused to take interventions, but that is his choice—that everybody on this Committee is seeking to do the right thing. We do not want to make a change to the law that opens up our intelligence and security services and our armed forces to accusations that they can act with impunity abroad. Based on some of the evidence that has been sent to the Committee from those who campaign on these issues, some people think that the clause does precisely that. I do not agree with some of what is in the submission from Reprieve that we received recently, but that submission contains quite a representative sample of what people in our society would probably think if they were to take a look at this clause.
A wholesale carve-out from liability under an area of the criminal law is a very serious step to take. I am not saying it is not the right thing to do, because we should take requests from the agencies and armed forces seriously—as the Minister is clearly doing—but I remain unconvinced. Such a carve-out could have unintended consequences, such as making it much less likely that thoughts will be focused on making sure that activity is lawful. We need to make sure these proposals are the right way forward, and that their advantages outweigh their disadvantages. We have been told that reasonableness is a vague concept, but it is vague only in the sense that it is very flexible and can, and does, apply in many areas of the law; its meaning is relatively well known. To my mind, if the agencies and armed forces are concerned that their conduct might not be considered reasonable, it is difficult to see how it could be necessary for the proper exercise of their functions.
Maria Eagle
It would be a very high bar to get over. If we are being told—there was an element of this in the evidence we heard—that there is a chilling effect on individuals trying to do their jobs, those individuals may need to be a bit better trained in what the law says, what it means and what they are able to do. In any event, whatever the law ends up being—whether it is this Bill, or what we already have—it is not a bad thing for those who operate at its margins to know precisely what they can and cannot do. I worry slightly that having a complete carve-out from liability might swing activities a bit too far in the other direction.
There are pros and cons to any way of doing this. I do not want the Minister to think I am being hostile; I am certainly not. I just want us, as the House of Commons, to be sure, when we consider this further, that this way is right and will work better than what we already have. I, for one, cannot see how this will be better than what we already have; I think that in many ways it will be worse.
Stephen McPartland
I am grateful to the hon. Lady for her intervention. I do not think I would be any good at giving anybody CPR. However, I understand the spirit in which she made the intervention and am grateful for that.
Stephen McPartland
I do not want to get distracted, because this is very serious. I will give way to you in a minute, Kevin; I want to get this point across. [Interruption.] Sorry—I will give way to the right hon. Member for North Durham in a moment.
As the law stands, a member of staff acting in the proper exercise of their organisation’s functions would bear the burden of proving that they had acted reasonably when there is no precedence as to what “reasonably” means in those circumstances. The provision would change that position so that the prosecution would need to prove that a member of staff’s actions were not necessary for the proper exercise or function of their organisation, taking into consideration all the information about the legitimate ways in which those functions could be exercised.
Mr Jones
The Minister has just said that the reasonableness test has not been used. The Attorney General would also have to get over that bar. Alongside that sits the old consolidated guidance—now the Fulford principles—which is quite clear about what actions officers should take in certain circumstances to avoid what we had before. If it has not been tested, I cannot see what the problem is.
Stephen McPartland
The problem is that the UK’s intelligence services are telling us that, every single day, their operatives are second-guessing themselves on operations to keep this nation safe. I believe what they are telling me.
The provisions in section 47 of the Serious Crime Act mean that a person need only believe their activity will encourage or assist such an act, but they might also be reckless as to whether the act is done, with all the necessary elements required for that particular offence to be committed—the offence does not have to be committed. We are talking about the intelligence operative’s state of mind at the time of sharing intelligence. That is what is relevant.
Mr Jones
If that is the justification, why do we not just bin the consolidated guidance and the Fulford principles, on which such judgments are based? The rendition inquiry has great examples of where we passed on information knowing that it would be used for rendition and torture. I have been assured by the agencies, and I have no reason to doubt them, that there has been a huge training programme to ensure all officers fully understand the consolidated guidance and the new Fulford principles. This is clutching at straws, frankly.
Stephen McPartland
I am grateful for the right hon. Gentleman’s point of view.
Clause 23 is primarily aimed at removing the risk and fear of prosecution from individuals within these organisations when undertaking their necessary authorised duties. Sir Alex Younger said:
“Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 14, Q26.]
We have already had a conversation about the difference between theory and practice, and the reality is there is a risk that individual UK IC officers will face criminal sanctions for doing their job. I agree with Sir Alex Younger that that risk should not exist.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
The foreign power condition
National Security Bill (Third sitting)
Lord Beamish ExcerptsTuesday 12th July 2022
(4 years ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 July 2022 - (12 Jul 2022)
Stephen McPartland
My hon. Friend is correct. Three tests must be met for someone to be prosecuted: conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power. Forgive me, but I do not believe that an NGO will accidentally fail all three of those tests.
Mr Kevan Jones (North Durham) (Lab)
But it may, because subsection (1)(b) states that a person commits an offence if
“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial”.
An NGO might think that putting something into the public domain is in the public interest. They may not even take into account that that disclosure may damage UK security. For example, in this morning’s newspapers—
Stephen McPartland
That example demonstrates how important the Bill is, because it sets out that activities that are illegal will still be illegal if actors are acting in a particular manner. The Bill is trying to bring current provisions up to date to provide our intelligence services with the toolkits they need to keep our nation safe and secure. I believe that the three tests are strong enough to help provide those protections.
Mr Jones
I accept that, but just take this morning’s example cited on the BBC of the alleged illegal acts by the SAS. Someone has got the information, put it in the public domain and may feel that it is in the public interest for it to be scrutinised. Will that damage our interests? Yes, it will. The Government might think that that disclosure will help a foreign power or damage our interests—and I would argue that possibly it will—but that is not to question the judgment of the individuals who have decided that the allegation should be in the public domain.
Stephen McPartland
I understand the right hon. Gentleman’s point, but I believe that we have three very strong tests that must be applied: the information must benefit a foreign power, the Attorney General must consider the case, and the CPS must decide that it is in the public interest to prosecute. Those three tests and protections run throughout the Bill.
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.
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
The legislation takes civil offences and makes some of them criminal. That case would remain a civil offence. What we are doing is providing the intelligence services with the tools they need to prosecute people who hand over trade secrets in the criminal system. For example, MBDA in my constituency builds Brimstone missiles, which are currently being used in action. If some of those secrets were to be removed and handed over, that would be difficult for the people using those missiles and for the country. There are clear examples of how the loss of trade secrets threatens the country and our allies’ lives.
Stephen McPartland
My understanding is that the action would have to be done on behalf of or for the purposes of a foreign power. If it was done unknowingly, it would be for the lawyers and the Crown Prosecution Service to decide how to proceed.
Mr Kevan Jones
I understand the thrust of the clause, but I would like some clarification on the definition of assisting a foreign power. I have one historical example, although I think it might not work. Eddie Chapman— Agent Zigzag from the second world war—was working for both sides. He was a UK agent and a Nazi agent. He got an Iron Cross for his misinformation work. In that case, he was not assisting a foreign power, because he was given dud information, but what about the case of a UK-based foreign diplomat who is working against us and supporting his or her nation, but is also then feeding information to us? It could be argued that that individual is working against our interests, because they are working on behalf of that other nation, but separately they might be the source of information. What would happen to that individual?
Gordievsky is a good example; he was in the Russian embassy in London for many years, feeding a lot of vital information to the UK, but his daily activities would have been prejudicial to the UK’s interests. How would the clause apply to individuals like that? Would they be separated out because of their benefit to us, although certain activities they are conducting would not be of benefit? I give just two historical examples, but there might be others in the future. Where would those individuals fall under the provisions in the clause?
Holly Lynch
As we have heard, the clause introduces a new espionage offence of assisting a foreign intelligence service. A person commits an offence if that person
“engages in conduct of any kind, and…intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”
Once again, we are broadly supportive of the clause. As highlighted by the Government’s own integrated review in 2021, threats to Government Departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. The clause goes a long way towards updating the threat posed by modern-day espionage and the changes are long overdue. The Intelligence and Security Committee’s 2020 Russia report stated:
“The current legislation enabling action against foreign spies is acknowledged to be weak. In particular, the Official Secrets Acts are out of date—crucially, it is not illegal to be a foreign agent in this country.”
Nevertheless, it is important that the Government clarify a number of different aspects of the clause. I highlight two recommendations from the Law Commission’s 2020 review of the Official Secrets Act. Recommendation 12.5 stated:
“In any new statute to replace the Official Secrets Act 1911, the requirement that the defendant’s conduct was capable of benefitting a foreign power should continue to be objectively determined. There should be no requirement to prove that the defendant personally knew or believed that his or her conduct had such capability.”
Will the Minister confirm that that requirement is compatible with the new offence established in clause 3?
The Law Commission also highlighted the danger of an individual unknowingly assisting a foreign intelligence service and then still being charged and convicted with the same offence as an individual who actively sought to assist a foreign intelligence service. This defence is currently accounted for in the Official Secrets Act 1989, as my right hon. Friend the Member for North Durham discussed. I appreciate that that Act is not being updated by this legislation, but the principle still stands. The Law Commission’s recommendation 12.24 stated:
“The ‘defence’, currently contained in section 1(5) of the Official Secrets Act 1989, of not knowing and having no reasonable grounds to believe that the material disclosed related to security or intelligence, should continue to apply.”
It is naive to think that foreign intelligence services advertise who they are and what they are planning to do with any information they are given by someone or in any engagement they may have. The duping of individuals is a somewhat common tool in espionage tradecraft. Let us say that an overseas business research company commissions a UK national to explain how the UK’s parliamentary processes work, but it transpires that the business research company was working for a foreign intelligence service. Under clause 3, could the UK national still be tried for assisting a foreign intelligence service?
We welcome the exemptions in subsection (7) that create an appropriate space for democratic obligations and diplomacy to take place, especially as the Bill makes no distinction between countries that are our allies and those that are hostile and seek to undermine the UK’s interests. However, I also note that the offence is explicit about the definition of a foreign intelligence service. On first reading, I had concerns that where someone is sharing information with a former member of intelligence services, the definition might not extend to criminalising that conduct. As the old saying goes, once a KGB officer, always a KGB officer.
However, given that the definition included in subsection (9) outlines that “foreign intelligence service” means
“any person whose functions include carrying out intelligence activities for or on behalf of a foreign power”,
I understand that anyone sharing information with former KGB officers, for example, would be committing an offence. I would be grateful if the Minister could confirm that that is the case.
Mr Jones
I sympathise with the amendment. In terms of legitimate protest, I may disagree with, for example, the peace camp at Faslane, but does it fall within the remit of the clause? Is that proportionate in an open and free society? I may disagree with what the protesters call for, but I would defend their right to make their opinions known.
We need clarity and to get the balance right between legitimate protest in the public interest and protecting security. The clause is detailed on access to prohibited areas. The clause states that a person commits an offence if they cause
“an unmanned vehicle or device to access”
an area. That is very clear. A drone, for example, would be prohibited. But what happens in the case of a trained eagle wearing a camera? I think that is covered by “device to access” an area. Will the Minister confirm that if someone strapped a camera to an eagle and sent it over a prohibited site, that would be covered by the Bill?
The clause is clear about inspecting
“photographs, videos or other recordings”,
but how wide is the area? It would cover someone standing with equipment that had access from 20 miles away, but what about somebody just observing through binoculars? Would that be covered? How big is the prohibited area? If we are not careful, the points that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has raised could fall within the scope of the Bill, or be used by the Government to stop legitimate protest or people who have an interest in opposing activities taking place at a certain site.
Holly Lynch
The SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and my right hon. Friend the Member for North Durham have outlined their thoughts on amendment 50. I will speak to clauses 4 and 5 more broadly.
Clause 4 establishes a new offence of entering a prohibited place for a purpose prejudicial to the UK. We welcome the measure, and the protection it will offer to sites and places that are vital to our national security. It has been a long time coming, and we have been falling back on somewhat antiquated legislation in the absence of such provisions. Giving evidence to the Intelligence and Security Committee in January 2019, the director general of MI5 said,
“The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc.”
In his evidence on behalf of the Law Commission last week, Dr Nicholas Hoggard said
“One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]
Clause 4(2) sets out that,
“a reference to inspecting a prohibited place includes—
(a) taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place;
(b) inspecting photographs, videos or other recordings of the prohibited place.”
We heard some more innovative examples, as my right hon. Friend the Member for North Durham likes to think outside the box, and as those acting on behalf of hostile states will continue to evolve and adapt to the legislation that we progress through this place.
Clause 4(3) explicitly states that the offence applies if the person inspects a prohibited place
“by electronic or remote means”,
and clause 4(4) states that the offence applies
“whether the person’s conduct takes place in the United Kingdom or elsewhere.”
The use of drones has been an asset in many ways, but inevitably a headache in others. I have raised concerns previously on behalf of constituents that it is at the extremes of distaste and disrespect for drone footage of serious or even fatal accidents to be taken by members of the public and shared on social media, or published by news outlets. It is with urgency that we need to update the laws that ensure national security is not compromised in the absence of up-to-date legislation, but for the reasons I have highlighted I hope this might also be the start of a conversation about drones, beyond their national security implications.
Clause 5 establishes that
“A person commits an offence if—
(a) the person—
(i) accesses, enters, inspects or passes over or under a prohibited place, or
(ii) causes an unmanned vehicle or device to access, enter, inspect 15 or pass over or under a prohibited place,
(b) that conduct is unauthorised, and
(c) the person knows, or ought reasonably to know, that their conduct is unauthorised.”
The Opposition welcome this provision, and see it as a necessary step to protect sites that are vital to our national security. I would like to probe the Minister on the stipulation that a person who commits an offence “ought reasonably to know” that their conduct is unauthorised. There is a concern that an individual may unknowingly stumble on a prohibited place, and then be prosecuted in the same way as someone actively seeking to undermine UK national security. Further detail on the sentencing guidelines might allow us to work through that uncertainty, but we have to work with what we have in primary legislation. The chances of that occurring are made more likely by the fact that this stand-alone offence does not need the foreign power condition to be met.
Let me provide some rare light relief in today’s proceedings. In 2016, civilians began to wander on to the grounds of several restricted air force and military bases in Canada while playing Pokémon GO, which is an augmented reality game where characters spawn randomly in the proximity of a user’s location—it was all the rage at the time. Documents released on request to the Canadian Broadcasting Corporation revealed the military’s confusion about what was happening at the time. One email from a major read,
“Please advise the Commissionaires, that apparently Fort Frontenac is both a PokéGym and a PokéStop”.
He went on to say,
“I will be completely honest in that I have no idea what that is.”
Just three days after the app’s release, two men drove a van on to an air force base near Toronto just before midnight. A corporal confronted the occupants and found them playing with their smartphones. In another incident, one woman was found at the Borden base playing the game, while her three children climbed over tanks. In their attempts to get on top of what was going on, the documents revealed that one colonel wrote,
“There’s a game out there taking off like gangbusters, and it requires people to move to digitally cached locations to get points”.
I do not know what “gangbusters” means. Another security expert recommended they hire a 12-year-old to help them out with the problem.
As part of the military response, at least three officers at different bases were assigned the task of playing Pokémon GO on site, and logging the appearance of every gym, PokéStop, and wild monster. In what I thought was a particularly enterprising spirit, in my constituency of Halifax’s namesake, they instead recommended that the PokéStop be relocated nearer to the museum, in the hope that it would increase footfall in a helpful rather than unhelpful way. I intended to share those examples by way of demonstrating that innocent players of Pokémon GO should be protected from the harshest of sentences, but on reflection, having read out the details, I am not so sure.
Back to the serious—I could not find specific examples here in the UK, but I can only imagine that there were some. We cannot afford to create carve-outs for Pokémon GO players that could be exploited by those acting on behalf of hostile states. The example outlines the need for appropriate consideration of such mitigations in the sentencing guidelines for such offences.
I note that the Law Commission proposed that in any reform of the Official Secrets Acts, a safeguard similar to that contained in section 131 of the Serious Organised Crime and Police Act 2005 should be introduced, requiring the Secretary of State to take such steps as he or she considers appropriate to inform the public of the effect of any designation order, including, in particular, by displaying notices on or near the site to which the order relates. That would ensure that an individual is given fair warning that he or she is approaching a location that is given enhanced protection by the criminal law. If I am not mistaken, that point was made by the right hon. Member for Dundee East on Second Reading. I hope that the Government will recognise the merit of doing so.
Stephen McPartland
I understand my hon. Friend’s point, which is that we have to be careful to provide the intelligence services with the tools they need to protect our protected sites. I may not agree with the purpose of protest, but I agree with the ability of everybody to protest lawfully. People will start to fall foul of this clause when they try to scale the walls of a restricted site and to impede lawful activity going on at the restricted site—when they start to move from protest towards criminal activity. That will be captured.
Mr Jones
I am not sure it will. Let us take the Faslane peace camp as an example. I totally disagree with what those people are arguing for, but if somebody there took a photograph and put it out on social media to make a political point, would they be caught under the Bill? Is not that prohibited under the Bill?
Stephen McPartland
No, because they would not be doing something designed to prejudice the United Kingdom.
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.
Mr Jones
I think the Minister just said yes to my question and the question of my hon. Friend the Member for Garston and Halewood about a person with binoculars. Does that fall under clause 5(1)(a)(i), which refers to an offence being committed if a person
“accesses, enters, inspects or passes over or under a prohibited place”?
Would somebody on a hill several miles away with a pair of binoculars be classed as inspecting an area? Is that why the Minister says that is covered in the Bill?
Stephen McPartland
Yes, that is the intention. Remember that the Official Secrets Act 1911 refers to sketches. We are trying to reform that Act and the others to get to a point at which we help our intelligence services to come up with ways of dealing with some stuff that could technically be considered out of scope. The idea behind the clause is that we will be able to give the intelligence community the tools they need to deal with somebody inspecting a site or doing something prejudicial to the UK’s interests.
Mr Jones
I come back to the fact that if we looked at the Official Secrets Act 1989 and had one big Bill, it would have been far better than this one. Will the Minister clarify that somebody with binoculars would be classified as “inspection”? My hon. Friend the Member for Garston and Halewood asked whether a person looking at a site through binoculars would be captured by this offence, or whether they would have to be writing something down. What is the situation with the old-fashioned sketches mentioned in the 1911 Act? Would they be covered?
Stephen McPartland
The purpose is to cover activity that is prejudicial to the United Kingdom’s interests. For example, if someone were bird watching and they looked at the site through their binoculars, they would not be captured by the offence because they would not be doing anything prejudicial to the United Kingdom’s interests. However, if they were sketching a site to identify how they could break into it or to record activity going on there, that would be prejudicial to the United Kingdom’s interests, so the clause covers that. It is a case-by-case situation.
The current prohibited places provisions fall under the espionage offence within section 1 of the Official Secrets Act 1911.
Stephen McPartland
Sketches are included, because a sketch would have to be inspected. The question was: are sketches included? The answer is yes.
Stephen McPartland
I am grateful to the hon. Lady for the very good points she has raised. My understanding is that the powers currently apply only to police officers, not to members of the military. It is very clear throughout the clause that it refers to “a constable”, and it is referenced as “Powers of police officers”.
Stephen McPartland
When we talk about military, MOD police will have those powers.
Stephen McPartland
Both the right hon. Member for North Durham and the hon. Member for Halifax made a very good point. We will take that away and look at it. If they want to strengthen the Bill, we are happy to work with them to do that.
Stephen McPartland
My hon. Friend makes a good point. We must also bear in mind that it is not our intention to introduce search-and-seize powers under these police powers. This is part of the tiered approach we referred to earlier, with the police being able to warn people to go away before they fall foul of the law. There is the opportunity to give them that warning before any arrest.
Mr Jones
I agree with the hon. Member for Burnley, but there are also sites that are benign, so it is not a force protection point but a constabulary duty that is carried out by members of the armed forces. Therefore, I think they need these powers if this is a comprehensive suite of powers.
Stephen McPartland
I am grateful to the right hon. Member. As I said, that is certainly something that we will look at and come back to.
National Security Bill (Fourth sitting)
Lord Beamish ExcerptsTuesday 12th July 2022
(4 years ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 July 2022 - (12 Jul 2022)
Holly Lynch (Halifax) (Lab)
Let me take clauses 7 and 8 and Government amendments 5, 6, 7 and 8 together. As the Minister has outlined, clause 7 defines a prohibited place for the purposes of clauses 4 to 8. The definition includes Crown land and vehicles used for defence purposes; places used for the invention, development, production, operation, storage or disposal of weapons; and land, buildings or vehicles designated by regulations made under clause 8.
Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. This will ensure that additional sites that are vulnerable to state threat activity can be designated when it is considered necessary. The Committee will note that, historically, the list of prohibited places has had a strong, if not total, military focus.
We just need to read the legislation to be struck by how dated it is. The Official Secrets Act 1911 defined a prohibited place as:
“any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty”
and so on. While reflective of the contemporary climate and the threats posed to the UK, this list has long been out of date. We therefore welcome this expansive update for defining what a prohibited place is, as well as giving the Government the ability to adapt the list where there is a reasonable case to do so. In the light of that, we recognise that Government amendments 5, 6, 7 and 8 complement the clause in that aim.
That said, I did probe the Law Commission during last Thursday’s evidence session on this point. It is important that this legislation is laid in such a way that it is not used by Government or future Governments to infringe on other democratic freedoms. During the consultation period of the Law Commission’s report on the Official Secrets Act, a number of stakeholders expressed concern about giving the Home Secretary such powers to designate a new site as a prohibited place.
The Trinity Mirror raised concern that an unchecked power to create designated sites based on national security may create a new criminal offence without parliamentary debate and could potentially stifle legitimate investigations in the public interest. WhistleblowersUK stated that the list should not end up being widened to include council officers or schools, for example. It would be incredibly worrying if a Home Secretary interpreted this power to allow himself or herself to mark places that served a purpose in the execution of an unpopular Government policy, for example, as a prohibited place. I outlined these concerns to Dr Nicholas Hoggard of the Law Commission, who provided some reassurance. He said,
“What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where
there is actually a real risk of harm arising from hostile state activity. On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]
I look to the Minister for the same political assurances: that such powers would not be used should the Government find that to declare somewhere a prohibited site would serve a purpose in the execution of an unpopular Government policy, for example. Having gone through the prohibited places National Security Bill factsheet on the Government website, I have already asked the Minister what information should be in the public domain to confirm that somewhere is a prohibited site.
I completely accept that somewhere might be so secure that extensive signage and its inclusion on any such list might not be appropriate. However, in the event of our Pokémon GO example, it is about being able to check without needing to travel to a prohibited place to observe the signage to find out, which might itself bring someone in scope of earlier offences. I want to ensure that the status of such a site, the restrictions and the consequences of not adhering to those restrictions are appropriately and clearly communicated to the public.
Before closing, I want to bring the Minister’s attention to clause 7, where we have sovereign based areas overseas for UK defence purposes. He has made the undertaking to consider military powers within the earlier clauses on police powers. It is my understanding that the Ministry of Defence police would not provide that service to these sites deemed to be prohibited places within clause 7. Once again, he might need to write to us to work through some of that detail further.
Mr Kevan Jones (North Durham) (Lab)
Mr Gray, we know that it is officially summer when you remove your jacket.
The Chair
Order. In 25 years in this place, I have never once removed my jacket until now. I am embarrassed!
Mr Jones
Possibly this historic day shows the effects of global warming.
I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of
“metals, oil or minerals for use for UK defence purposes”.
I would like to define why it has been outlined in that way in the Bill.
I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.
The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?
Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?
I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?
I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.
I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.
Stephen McPartland
I appreciate that. We have heard this morning and in previous sittings about that tension in respect of the Government interest and defence. There is case law that defines it. The purpose of the Bill is to provide the intelligence services with the tools they need to keep the country safe. They feel that they need these tools to do that. There are safeguards. The idea behind the number of factors is that there are a variety of checks on the Secretary of State, so they would have to demonstrate all the way through that they have considered that multitude of factors and that it was necessary for the defence of the country.
On the point made by the right hon. Member for North Durham, I cannot believe I am going to say this but I cannot tell him what I have been briefed, for national security reasons. The reality is that in these clauses we have moved away from designating places to categories. One of the categories is unavowed sites. That means that some of the sites that he suggested would be covered by the category.
Stephen McPartland
Another query raised was about oil and metal, which I understand are already in the existing provision for use in defence. That is why we refer to those areas. Finally, we are not designating military bases abroad, other than sovereign bordered areas, purely because of difficulties with jurisdiction and making that work.
Amendment 5 agreed to.
Amendments made: 6, in clause 7, page 7, line 4, leave out
“(including a part of a building)”.
This amendment is consequential on Amendment 7.
Amendment 7, in clause 7, page 7, line 24, at end insert—
“‘building’ includes any part of a building;”.
See Amendment 5.
Amendment 8, in clause 7, page 7, line 37, at end insert—
“‘GCHQ’ has the meaning given by section 3(3) of the Intelligence Services Act 1994;”—(Stephen McPartland.)
See Amendment 5.
Clause 7, as amended, ordered to stand part of the Bill.
Clause 12 ordered to stand part of the Bill.
Clause 9
Power to designate a cordoned area to secure defence aircraft
Question proposed, That the clause stand part of the Bill.
Draft Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022
Lord Beamish Excerpts(4 years, 1 month ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Kevan Jones (North Durham) (Lab)
To echo my Front-Bench colleagues, I think that anything that tries to improve our security should be welcomed, but a few things in this measure do need some clarification. Like the hon. Member for Halifax, I welcome the issue that Jonathan Hall raised about training. And I will give some examples in the code of where I think clarification and record keeping would be important. There is also the fact that there are certain discretions in the measure that give individual officers quite a lot of leeway for interpretation. I accept that no two situations are the same, but in terms of the general piece, once these provisions are enacted, will the Department review their operational effectiveness? Will, for example, the independent reviewer of terrorism legislation be allowed to look again at the operational way forward? I think that that would make sure and give us some reassurance that they are actually in effect.
I just want to look at two examples. On the selection criteria for those individuals selected, the code is clear that
“the selection of a person for examination is not conditional upon the examining officer having grounds to suspect that person of being engaged in terrorism, the decision to select a person for examination must not be arbitrary.”
I think we would all agree with that. The code goes on to say that it cannot be
“appropriate for race, ethnic background, religion and/or other “protected characteristics”…to be used as criteria for selection except to the extent that they are used in association with considerations that relate to the threat from terrorism.”
That makes sense. It then lists those considerations, which include
“known and suspected sources of terrorism; persons, organisations or groups whose current or past involvement in acts…; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity; or appear unusual for the intended destination”.
Those all seem sensible and then, obviously, there is the consideration of intelligence from our security services about named individuals.
However, the last considerations are
“observation of a person’s behaviour”
and/or
“referrals made to examining officers by other security, transport or enforcement bodies”
That seems quite a broad definition.
I accept that when security officials are looking at people coming through points of entry, people acting suspiciously may be a reason for detaining them but, when it comes to training, what are criteria for that? What is the process for record keeping? Somebody may be acting suspiciously, but they may not turn out to be a threat at all. If that is then linked to ethnicity—I accept that that is not an appropriate criterion—that could lead to individuals claiming that they were picked because of their ethnic or religious background. If people are selected in such a way, will records be kept so that we know how many are found to be linked to terrorism and how many are perfectly innocent? That last consideration could be a get-out.
Another operational matter is about the right to legal representation. The code states:
“A person who is being examined at a port, but not detained”—
there is a section later on about the specific legal rights to a solicitor that people if they are detained—
“is not entitled to consult a solicitor. Should the person request to do so, the examining officer may grant this at his or her discretion.”
Again, that leaves a lot of power with the individual to make a decision should legal representation be requested at that point. The code continues:
“When a consultation is allowed, it should be allowed to be conducted in private”—
that is common sense. I also accept this bit:
“The person must be informed that any consultation will not be at public expense.”
However, when it comes to training, what are the grounds for refusal when somebody legitimately wants to consult a solicitor? It may be impractical or unnecessary. As I say, when someone is detained, the conditions for consulting a solicitor are clearly laid out. I would like some clarification around that. Is it about training? Will the examining officer keep records of when people have had requests refused? It may be better to do that in most cases to protect not just the individual but the officer. That is not a criticism of the reasons why this draft order is important.
As my hon. Friend the Member for Halifax said, there are things in the draft order that give discretion, and discretion can sometimes lead to instances of unintended consequences, so I would like some clarification so that we can be sure that these regulations are enacted in the way that was intended, and in a fair and just way.
Damian Hinds
I thank all members of the Committee for this important scrutiny sitting and our debate. Several important points were made by the hon. Member for Halifax who speaks for the Opposition, the hon. Member for Falkirk of the SNP and the right hon. Member for North Durham, and I will address them now.
We have to look realistically at the situation we are dealing with: the vast majority of people who arrive on small boats have no documentation with them to indicate who they are or where they are from. Enabling officers to examine those who are being processed for immigration purposes away from the ports, as well as at the ports, means that we can fulfil our duty to safeguard national security, while allowing those individuals to be moved from a port environment to more appropriate facilities.
We do not publish statistics on the results of schedule 7 examinations, because to do so would risk disclosing whether a stop was targeted, and that is an operational matter for the police. I reassure the right hon. Gentleman, however, that there is extensive record keeping and analysis, as he might imagine.
Damian Hinds
I reassure the right hon. Gentleman that such operations have extensive ministerial oversight, and rightly so.
On a number of previous occasions, a well-rehearsed debate on the powers under schedule 7 has been considered in depth, as colleagues know. For now, I reiterate only that those powers have been absolutely integral to the work of the police in detecting and disrupting terrorists for more than two decades. The police do that—I reassure everyone—in a way that is compliant with article 6. Oral answers, as colleagues know, are of course excluded from criminal proceedings.
The hon. Member for Halifax asked specifically about locations and what should be in scope. The key practical operational point here is that people will be in custody or immigration detention, so scope should not arise in general as an issue.
Various colleagues asked about training, and we continue to work closely with the police to ensure that the independent reviewer’s recommendation on training is included. I am grateful to the hon. Lady and others for mentioning the independent reviewer of terrorism legislation, Jonathan Hall QC, because it gives me another opportunity to put on the record my thanks to him for his extremely diligent work.
The code of practice has long been clear that selection of a person based solely on ethnicity or religion is unlawful. It also directs officers to exercise the powers fairly and responsibly, with respect for the people to whom they are applied. All examinees are provided with details of how to make a complaint should they wish to do so, and those detained for more than an hour are entitled to private consultation with a solicitor.
It is important to note that, to date, no independent reviewer of terrorism legislation has suggested that the existing schedule 7 powers are being applied inappropriately. We will continue to work with the reviewer to ensure that the powers are applied proportionately and in the most effective and targeted way, and to minimise disruption to those subject to their use where possible.
I hope that my comments have underscored the importance of the powers and of the code of practice that provides guidance and safeguards on their exercise. I thank all members of the Committee—right hon. and hon. Friends and colleagues from the Opposition parties—for their presence today for this important scrutiny debate. I also thank you, Ms Elliott, and everyone else who has enabled the debate. Keeping the UK safe is the Government’s foremost responsibility, and the provisions within this draft statutory instrument will support that vital endeavour. I commend it to the Committee.
Question put and agreed to.
National Security Bill
Lord Beamish ExcerptsMonday 6th June 2022
(4 years, 1 month ago)
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Mr Kevan Jones (North Durham) (Lab)
I am at a bit of a loss to understand why the Government have not brought forward reform of the 1989 Act, because the security services, in evidence to the Intelligence and Security Committee, has said it is unfit for purpose—I think even the Government have admitted that, and so has the Law Commission. If we do not amend or substantially change that Act, we will have a situation where someone can get life for foreign espionage under this legislation, but only two years under the Official Secrets Act 1989. Surely this is an opportunity to update all that legislation? I cannot understand why the Government are doing things in this way.
Priti Patel
The right hon. Gentleman will appreciate that, whether that is the view of the Law Commission or others, reform of the Official Secrets Act is complicated and not straightforward. I can tell colleagues that no one would be happier than I to present a reform agenda in that space, but it is not straightforward—[Interruption.] I appreciate colleagues’ gesturing on the Back Benches, but it is important that on this complex reform we continue to engage with a wide range of interests and give all due consideration to a number of concerns, because there are many, many concerns being raised.
Priti Patel
My hon. Friend is absolutely right. He has touched on lobbying, as just one example, but we could expand the list. We have discussed in this House other enablers and facilitators, whether it is through Parliament or other means, to get access to the state, or institutions or arms of the state. I spoke earlier about the lacunas—the areas that we have to close down, or the grey zone, across the board. My hon. Friend has spent a great deal of time on this issue through the Foreign Affairs Committee. He is very much pursuing it and we look forward to working with him on it.
Mr Kevan Jones
I am listening carefully to what the Home Secretary is saying, but why is there not in the Bill the foreign influence registration scheme that was called for by the Intelligence and Security Committee report on Russia in 2020? She said that the Government are working on it, but the United States have had this legislation since 1939 and the Australians brought in emergency legislation in 2018, so what is so difficult if one country has had it for over 70 years and the other one has brought it in more recently? Why is it not in the Bill? Is it going to be inserted later by an order of the House, which would be unfortunate as we have not had a chance to debate it today?
Priti Patel
Our intention is to bring forward foreign agent registration and it will be brought forward in the Commons; let me give that assurance. [Interruption.] The right hon. Gentleman asks what is so difficult about it. There are a number of difficulties. It is not just a case of lifting and shifting what the US and Australia have done. We have been working with our Five Eyes colleagues. There have not just been many debates but we have working with colleagues who have themselves had difficulties in some parts of enforcement. We have had very close links with our Australian counterparts in terms of workability. We want to get it right. There will be an open debate about it in Committee and everywhere else, and we look forward to working with the right hon. Gentleman on that.
Priti Patel
Importantly, this is where we need to join up both ends of the legislation. That is absolutely vital, through this Bill and the wider work on online harms, but there are changes that we certainly want the platforms to be putting in place. We have touched on the accountability of platforms already, but there is just so much more that they need to do and which is their responsibility.
My hon. Friend makes an important point about how, for example, if we look at counter-terrorism offences and platforms’ approaches to footage online, GIFCT—the Global Internet Forum to Counter Terrorism—has led the way on some significant change. That is what we need to see across the board here, and we really need them all to come together.
Mr Kevan Jones
On foreign influences, why does the Bill cover someone who “intends” to have a negative impact? Elsewhere, the Bill talks about behaviour that is “reckless” and individuals who “ought reasonably to know” that their behaviour would be damaging. Can I ask why there is this difference between the two? Surely it would strengthen this part of the Bill to have the “reckless” and the “ought reasonably to know” behaviour test.
Priti Patel
At the end of the day, we are focused on individuals who are trying to do harm to our country. I will look specifically at that—obviously, I will—but intent is also based on the information and activity that can come together around some of the individuals. Right now, we are only referring to much of this on a case-by-case basis, but as we have learned with recent examples, some of which I might come on to, we can see the intent and the harm in the sequence of activity that has taken place around individuals.
Yvette Cooper
As I have said, these debates will rightly take place through the usual channels to ensure that we have that scrutiny. I am also keen to ensure that the evidence session can take place in plenty of time.
Another issue that Members on both sides of the House have raised is the absence of reforms to the Official Secrets Act 1989, and on that point I am slightly less clear what the Government’s intention is. My understanding from what the Home Secretary has said is that she does not plan to bring forward measures in this Bill but that she is looking at the issue further. The Law Commission has raised important issues about the need to improve prosecutions in certain areas and to have public interest safeguards, both of which are immensely important, as I think the Home Secretary has recognised. Will she and the Security Minister therefore engage at an early stage in discussions on this issue with Members on both sides of the House?
Mr Kevan Jones
Like my right hon. Friend, I am not clear what the Home Secretary’s timetable is for reviewing the 1989 Act. However, if the Bill goes through as outlined, some of the penalties in it will be life imprisonment, and some in the 1989 Act will be two years. Having the two Acts working together will create a very difficult process. Surely the obvious thing to do is to get the reforms into the Bill as it goes through Parliament.
Yvette Cooper
My right hon. Friend makes an important point, and he obviously speaks with the Intelligence and Security Committee’s insight on this issue. The only other consideration I would raise is that a last-minute proposal from the Government would be a problem, because we would end up not having full scrutiny, and this is an area where it is important to get the legislation right. On the points that the Committee has made about the importance of reforms to the 1989 Act, I encourage the Security Minister and the Home Secretary to have early discussions with members of the Committee, Opposition Front Benchers and Members on both sides of the House who have concerns. We will inevitably need to debate these issues during the passage of the Bill, even if the Government want to propose future legislation on a different timetable. Having those discussions at an early stage to try to get this right would be important.
We are also concerned about areas of the Bill relating to the ability of foreign powers to use misinformation and disinformation online, which the hon. Member for Folkestone and Hythe (Damian Collins) mentioned. My understanding of the interaction between this Bill and the Online Safety Bill is that some cases where misinformation or disinformation is repeatedly put online by a foreign state will not be covered and that there will not be a responsibility on social media platforms to remove some of that material, but it would be helpful to have some clarification from Ministers. Obviously that is an area where most of us in the House would want further action to be taken and would want there to be more responsibility on social media companies to take action. We would therefore like to explore whether there are further amendments that we could bring forward to this Bill or the Online Safety Bill. That would be very helpful.
We are also concerned about direct attempts to interfere with our democracy and elections. The Home Secretary has rightly included in the Bill measures to tackle foreign interference in elections but, as the Government will know, offences make little odds if they cannot be detected or measures are rarely enforced. As the Home Secretary will know, we have urged the Government to remove the loophole that allows shell companies to be used to make donations to political parties and to hide foreign donations and donations linked to hostile states. She will also know that the former director general of MI5, Lord Evans, who is now the head of the Committee on Standards in Public Life, has warned about the risks from shell companies, describing the risk from
“powerful forces out there that are trying to bring undue influence, part through parliament and part through money. We made some recommendations to close some of those loopholes but government hasn’t acted on them.”
Since the atrocity that is the illegal invasion of Ukraine, the Government have had to recognise that it has been far too easy for Russian money, built up through illegal activity or state-sponsored corruption, to find its way into the London economy. Again, we have both the follow-up economic crime Bill and this Bill, but I urge the Home Secretary to ensure that the loophole on shell companies is closed and that those weaknesses in our democracy are addressed, because the loophole in itself is a threat to national security.
My hon. Friend the Member for Rhondda (Chris Bryant) raised concerns about MPs being targeted. There are also concerns about Ministers potentially being targeted. The Home Secretary will know that the shadow Security Minister has raised questions about reports that the Prime Minister, when he was Foreign Secretary, met with a former KGB agent soon after the Skripal attack. I have not heard concerns raised that that was a planned or intended meeting, but nevertheless the reports of the meeting show how easy it is for Ministers, as well as MPs, to be targeted by agents of foreign and hostile states. I urge Ministers to provide some clarity about that meeting—whether it took place, whether civil servants were present—and about what protocols should govern how meetings take place for Ministers, what kind of debrief should happen afterwards and what kind of safeguards should be in place, and whether those will be covered by this Bill or we need additional protocols for civil servants, MPs and Ministers.
There are some areas where we will want to question the drafting of the Bill, because it is very broad. For example, there is obviously a difference between someone who is meeting the foreign intelligence agencies of our closest allies—for example an academic who meets with an Australian foreign intelligence service, providing it with useful information that might help with our joint Five Eyes security arrangements and might be in all our interests—and an academic meeting with someone from the Chinese intelligence agencies and handing over intellectual property or research information that undermines British industry.
We are keen to explore in Committee how those differences will be addressed in the Bill and how, for example, it will address some of the issues around co-operation with Ireland over Northern Ireland security issues, which will clearly raise some particular and special cases. We also want to explore what might incidentally benefit a foreign Government and what deliberately benefiting a foreign Government is, and how that is addressed. We also want to address some of the questions around the public interest and national security that hon. Members have raised.
We have already raised directly with the Minister for Security and Borders a series of questions and concerns about the drafting of clause 23, to ensure that it is not too wide and cannot be used to cover individuals committing serious crimes abroad. I welcome the letter we have received from him, but we want to pursue those issues in further detail in Committee.
Perhaps one of the most important issues that the Bill could easily address but does not yet is oversight. Because agencies rightly need to operate behind a veil of secrecy, there needs to be proper oversight to safeguard both those who work within the agencies and the national interest. The Bill rightly introduces an independent reviewer to look at the state threats prevention and investigation measures, and we know that is a parallel arrangement to the independent reviewer arrangements we have for terrorism prevention and investigation measures.
The Home Secretary will know that I have argued previously that it was wrong to replace control orders and that TPIMs were too weak. They have since rightly been strengthened. They are used in only a small number of cases, but it is immensely important that there is oversight of them, and there must be proper oversight of the STPIMs as well. It would not surprise me if they were used even less frequently than TPIMs, but there must be proper safeguards.
There is a gap in the oversight framework. The terrorism independent reviewer looks both at individual TPIMs and at terrorism legislation, so he can look at all of the aspects of terrorism legislation to see where there are gaps and whether it is not working effectively. The scrutiny by David Anderson and by Jonathan Hall has been invaluable. It has been good for Government, good for the agencies, good for Parliament, good for our national security and good for our historic freedoms and having the right safeguards in place.
That scrutiny by the independent reviewer has in the past identified weaknesses in terrorism legislation. Sometimes that has been exactly the point I raised about TPIMs becoming too weak and needing to be strengthened, but the independent reviewer has also identified areas where stronger safeguards were needed, particularly on digital measures, digital infrastructure and digital safeguards. There is a really strong case for having the same kind of independent scrutiny of the operation of these new powers on espionage. The Home Secretary has rightly said that this is important legislation, but also that this is the first time we are drawing up legislation in some of these areas and that some of the legislation has not been updated for many decades, so we should have some humility on this: Parliament will not get all the details right.
Mr Kevan Jones (North Durham) (Lab)
It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), and I congratulate him on his recent inclusion in the Queen’s honours list.
This Bill has been long coming; we have been waiting for several years now. The Government have made some improvements in it, but overall it is disappointing. As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, it is not the comprehensive legislation we were promised and, as has already been mentioned, it does not include the reform of the Official Secrets Act 1989.
The right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, which I have the privilege of being a member of, said that the Committee has called for nearly the past 20 years for the reform of the 1989 Act. I am one of the two remaining members of the Committee who were on it when we considered our Russia report. We made very clear in the recommendations of the report, published in 2020, that there was an urgent need for reform of that Act, which we described as not being fit for purpose. More importantly, we took evidence from the agencies, which all said that the Act was in need of reform. We recommended that it should be reformed, and said that without any major reform the security services would continue to have their hands tied when trying to tackle the job that we give them.
It is surprising that reform of the 1989 Act has not been brought forward in this Bill, because it has not just been raised by the ISC and the security services; the Government themselves have repeatedly said that the Act needs to be changed and reformed. In a 2020 report, the Law Commission also concluded that the Act was “outdated” and in “urgent need of reform”. Like my hon. Friend the Member for Garston and Halewood, I am at a loss as to why this reform is not in the Bill.
The 1911 to 1939 Official Secrets Acts are clearly repealed through the Bill, but if we do not change the 1989 Act, the current problems will persist. As has been mentioned, the requirement to prove damage from unauthorised disclosures is in most cases a real barrier to prosecution, and in some instances leads to more sensitive information having to be produced in court. That is a deterrent; it is a weakness that explains why the Act is not being used. Also, as I mentioned in an intervention on the Home Secretary, the maximum sentence under the 1989 Act is two years. In the Bill, we are introducing life sentences. I do not know what deterrent two years would be, even with the hurdles we have to get over, so I am at a real loss as to why these reforms have not been included in the Bill.
I am not clear from what the Home Secretary said when that reform will be brought forward. We all know how tight legislative time is. I would have thought that once the Government had a large Bill such as this one, they would want to do everything at once. Could it be that there is a lack of time? No, I do not think so, because the changes being put forward have been considered over many years. We need an explanation from the Government as to why this reform is not being done.
Mr Steve Baker
The right hon. Gentleman is making some very good points. I rather imagine that the damage that could be caused by an unlawful disclosure could include people losing their lives, and that one problem is that proving that damage could lead to yet further people losing their lives. I do not wish to tempt him where he must not go, but can he give those of us without access to classified information any indication of whether my worst imaginings are in any way accurate? If they are, it seems to me that a life sentence might be appropriate.
Mr Jones
I would not want to go anywhere near what is in the hon. Gentleman’s imagination. All I can say is: yes, we are talking about information that will have an impact not only on our general security, but on the security of individual agents and others. That is why I support the Law Commission’s recommendations to introduce a public interest defence and to create an independent statutory commissioner to investigate wrongdoing or criminality where disclosure would otherwise constitute an offence under the 1989 Act.
The absence of reform means that if we pass the Bill as it is now, there will be nothing in it to guard against large, mass disclosures of sensitive information; we will still rely on the 1989 Act. Even if somebody indirectly helped foreign powers, I cannot see how we could bring them to book under this Bill. We should support the introduction of a public interest defence, because it would make it easier to bring prosecutions. I have heard some people say, “This would really give journalists and others an opportunity to throw secrets out there.” No, it would not; it would put the onus on them to argue in court that it is in the public interest that the information is disclosed. It would be welcome, as it would ensure that people thought about what they did.
Mr David Davis
Does the right hon. Gentleman agree that the Katharine Gun case is a good demonstration? The prosecution was dropped at the point of trial, probably because the Government could not predict how a jury would interpret her public interest defence rights without any codification.
Mr Jones
The right hon. Gentleman raises an interesting point. Without reform, the courts will define public interest anyway. I would sooner have this place define it than leave it to the courts or allow an ad hoc system to build up over time. I do not understand why the Bill does not take that opportunity, because it would help. Some journalists think that it would be a way of stymieing them, but I think it would clarify the position on the information that can be put in the public domain and would actually help to make that defence. I would rather have this House than a court of law setting those parameters.
The Law Commission made another recommendation that I think worthy of consideration, although we need to work out how it would work in practice:
“an independent commissioner to receive and investigate complaints of serious wrongdoing where disclosure of the matters referred to may otherwise constitute an offence under the Official Secrets Act 1989. That commissioner would also be responsible for determining appropriate disclosure of the results of that investigation.”
That would provide another valve in the pressure cooker of the system when people think that wrongdoing needs to be highlighted.
I would love to know why the Government have missed the opportunity to bring all these things forward in the Bill. I hope that as it passes we can insert some of them: that would not only strengthen the Bill, but give our security services the toolkit that they need.
The foreign influence registration scheme, which we called for in the 2020 Russia report and which is supported by the agencies, would make it unlawful to be an undeclared intelligence officer. I accept that there are issues with definition, but the consultation on the Bill described it as a key component of the new regime, yet for some reason it is not in the Bill. I hear the Home Secretary’s promises, but—call me old-fashioned—I think we should have it before us today to debate on Second Reading.
Bob Seely
The right hon. Gentleman is making a valuable point. One of the problems that we have to get to grips with is the difference between a paid-up agent—the sort of old-school spy who worked for the KGB and others—and someone who works ostensibly for the United Front and is not technically a spy, but is cultivating a malign and covert form of influence. Arguably, they are both as damaging. This is a genuine question: how does one decide which of the two is more serious? Do we equate them, in this day and age?
Mr Jones
I think transparency is the way to do it. That is why Australia’s Foreign Influence Transparency Scheme Act, which was introduced very quickly in 2018, requires anyone engaging in lobbying or any kind of communications activity for the purpose of political influence on behalf of a foreign principal to be registered. The US scheme, which has been mentioned, was introduced in 1938 and came into force in 1939. If Australia and the US have such schemes, I am sure we can have one.
Personally, I think transparency is the best way forward. The approach that I understand the Government are looking at—having a list of countries on behalf of which people working have to register—is asking for trouble and will have to be updated over time. The Australian system and the US system are far better because they are all-encompassing.
Bob Seely
I disagree slightly with what the right hon. Gentleman is saying, although he is making a very good point. I think there is a very good argument for treating Oleg Deripaska differently from the New Zealand tourism board. For one, there should be a very light level of registration, because clearly the New Zealand tourism board is unlikely to be a front for anything other than New Zealand tourism, whereas Russian oligarchs, the Huaweis of this world and the United Front may hide all sorts of nasties behind them. If the Government have the courage to name China along with Russia, North Korea and Iraq, that is potentially an attractive option, is it not?
Mr Jones
It is, but an active list that has to keep being updated is a problem. I would go broad first. If the New Zealand tourism board had to be caught by that—I am not sure we have anything to worry about from the New Zealand tourism board, apart from representing a fantastic country that is a great place for tourism—the important point is that it would be fair across the board. Again, I do not understand why that measure is not being brought forward today.
I will raise one last concern, which is about clause 23 and has been raised by the right hon. and learned Member for Kenilworth and Southam and also my hon. Friend the Member for Garston and Halewood. I see no purpose for the clause at all. I want to know from the Government what it is that is not already in legislation that they are trying to get at, or where the clause has come from, because it is certainly something I have never seen raised by the security services at the Intelligence and Security Committee. If we are to have this clause, I would also like to see some kind of oversight of it, whether that is the Investigatory Powers Commissioner or some other networks. Otherwise, the Bill is giving a large degree of latitude to individuals.
We should remember that this has been a hard-fought issue. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), raised the important point—let us be honest, it has happened over a period of time—that the Investigatory Powers Commissioner has been excellent in improving the oversight and robustness of the regulation around our security services, which are so important, and the confidence that people can have in that.
With that, I welcome that we have a Bill, but is it a Bill that will do what it says on the tin? I am not sure it will. It will need a lot of changing in Committee.
Mr Baker
My hon. Friend makes his point extremely well, but I hope he will not mind if I say that I do not want to be diverted to that subject, not least because I want to foreshorten my speech a little.
My other point about STPIMs relates to the introduction of polygraphs, which is an area that I have not had the chance to research as much as I might have liked. Can my right hon. Friend the Minister let us know whether this is the first time that we have legislated for their use or whether a new principle is being introduced into our law? Polygraphs are not perfectly reliable. I have read the explanatory notes, but I wonder whether their introduction is an innovation.
I am really concerned about the development of certain trends in the rule of law, as evidenced in arguments that I have made. As a result of the Online Safety Bill, we now have the concept that some speech is legal but harmful, which seems to me a fuzzy concept of what is and is not allowed in law. That is not where I want our country to be, but I accept that I am not a learned mind in this place—I am only a humble aerospace and software engineer, and an MSc in computer science does not always cover such difficult matters of fuzzy logic.
The main issue that I want to address is about extraordinary rendition. Schedule 3, “Detention under section 21”, in part 1, “Treatment of persons detained under section 21”, under the cross-heading “Place of detention”, states:
“(1) The Secretary of State may designate places at which persons may be detained under section 21.
(2) In this Schedule a reference to a police station includes a reference to any place which the Secretary of State has designated under sub-paragraph (1) as a place where a person may be detained under section 21.”
Putting it in plain English, the Secretary of State may make provision to detain people other than at police stations, and constables must take those people to those places. Colloquially, when we were looking at extraordinary rendition, those places were known as secret prisons. I would very much like to know from the Minister why we need to nominate other places to detain people. Will they be detained to the same standard as in a police station? I would very much expect so. What are these places? I am aware of some of them, but where are they, and for what reason can people not be detained at a police station?
That point brings me on to extraordinary rendition. Look at what happened to us after 9/11—the wars we waged, the principles of civilisation and freedom that had kept us free and given us something to be proud of and to fight for, and which we undermined. “The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”—a Government document that is freely available—makes it absolutely clear that the
“UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment (‘CIDT’), or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT. The UK takes suggested incidents of this kind very seriously: these allegations against UK personnel are investigated and complaints in this context are brought to the attention of authorities in other countries”.
Having bumped into some relevant officials, I am extremely satisfied that we take this very seriously.
Going back to the earlier commissioner’s report that I read out, I am absolutely not casting aspersions on our brave and honourable staff, every one of whom, on the few occasions I have met them, I have been incredibly impressed by. I believe that they are seeking to uphold the very highest standards. That is why I put it to my right hon. Friend the Minister that this Bill would be a great moment to put these principles on a statutory footing. In that way, in future, when there is another panic over terrorism and security under another Government who are perhaps not as strongly principled as this one—perhaps with not quite the same culture at the top of adherence to and compliance with the law—we can all be reassured that we will not allow ourselves to come on to conduct that I will touch on in a moment.
Mr Kevan Jones
Since the issue of rendition, we have had the consolidated guidance and now we have the principles where the warrants are overseen by the Investigatory Powers Commissioner. Having reviewed the principles in terms of the ISC, it is clear that they are quite robust not only in the safeguards they give but in training people throughout the organisation to ensure that they adhere to them.
Mr Baker
I have read enough of the various documents to know that the right hon. Gentleman is absolutely right, and I am glad to agree with him.
I do not want to open up too many old wounds, but I have read the excellent book, “Account Rendered”, by the now Lord Tyrie, which includes some purportedly declassified top secret documents on how the CIA conducted their interrogation techniques. I very much hope that Ministers responsible have read those documents, because I found it quite nauseating. I am ex-forces. If you are ex-forces, then at some time in your life you are actually committed to killing our enemies, but even so I found it nauseating to see just how degrading authorised American interrogation techniques could be. The list of what they would do includes the attention grasp, or grasp by collars; walling, or slamming people against a false flexible wall; the wall standing stress position; the facial hold; facial slap stress positions; waterboarding—I think we can pretty clearly be disgusted by that—and cramped confinement, including putting insects in a box with a person who you know has a phobia. Imagine combining all these things using nudity, control of diet and restraint, putting them all in sequence deliberately for prolonged periods. That is what the declassified documents in “Account Rendered” give an account of.
I completely agree with the right hon. Member for North Durham (Mr Jones) that these principles are absolutely robust, and I am 100% certain in my own mind that our brave officials—men and women good and true, noble and decent—would never want, in any sense, however distant, to be complicit in extraordinary rendition for the purpose of degrading treatment. I am absolutely clear about that. But our job in this House is not to simply trust the great and good people that we have today; it is to put in place a law that makes sure that in future everyone can understand that we do not do these things, not least because showing that we are on the right side of the argument will help us to recruit agents overseas.
I am dead serious about this. It is no reflection on my very high estimation of the people who serve us and keep us safe; it is about worries about the future when there is another panic about another terrorist attack. I say to my right hon. Friend the Minister: if public-spirited lawyers draw up clauses that can put these excellent, robust principles on a statutory footing, I will certainly seek to maximise support for it, because in future we must make sure that no Government of any colour can ever discredit our great people by raising even the slightest suspicion that we might have been even distantly complicit in cruel, inhumane and degrading treatment of prisoners.
Damian Hinds
If my right hon. and learned Friend will forgive me, I will not.
The existence of a public interest defence could mean that damage from the original disclosure could be compounded by further disclosures that had to be made to argue against and defeat that use of the public interest defence. That could itself then in turn be misused and mean that in some circumstances, even where there were egregious breaches of the law, in effect they could not be prosecuted. That is why, to respond to the point made by the right hon. Member for Dundee East, it is important that we look at the safe and proper channels and methods for making disclosures, where that is important, and there are times when it is. We are looking carefully at that.
To come back to my right hon. Friend the Member for South Holland and The Deepings—this is an important point in general—the defences in part 1 of the Bill provide law enforcement with several options for prosecuting disclosures where the person is acting for or on behalf of a foreign power or where the disclosure would materially assist a foreign intelligence service. That can include bulk disclosures. To be clear, with this Bill, the maximum sentence for an indiscriminate disclosure—a bulk data dump—will be higher than it is today if that act is done for a foreign power or the disclosure would materially assist a foreign intelligence service, even if not procured by that foreign intelligence service itself.
Damian Hinds
Prosecuting authorities have to make judgments. The Bill is specifically about national security, but within that it is about countering state threats. It gives us a whole new set of tools and weapons to add to our arsenal, and, notwithstanding the right hon. Gentleman’s body language, I think that that is much to be welcomed.
My hon. Friend the Member for Wycombe (Mr Baker) asked a specific question about police stations. Because of the new arrest power in the Bill that can last up to 14 days, the Secretary of State may be required to designate specialist sites to meet the operational need, but I want to reassure my hon. Friend that this has nothing to do with extraordinary rendition. The provision mirrors those in the Police and Criminal Evidence Act 1984 and the Terrorism Acts to ensure that appropriate facilities are available. However, it is not possible to designate such a place outside the United Kingdom. The Government are clear about the fact that torture, mistreatment and arbitrary detention are contrary to human rights law.
Economic Crime (Transparency and Enforcement) Bill
Lord Beamish ExcerptsMonday 7th March 2022
(4 years, 4 months ago)
Commons ChamberRead Full debate Economic Crime (Transparency and Enforcement) Act 2022 View all Economic Crime (Transparency and Enforcement) Act 2022 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 7 March 2022 - (7 Mar 2022)
Priti Patel
I will give way shortly, but first I will make some progress, if I may.
This will be about hurting Putin and his vicious regime, which has robbed the Russian people of their chance for democracy, peace and prosperity—not only that, but even their own wealth has been used and abused by these kleptocrats and oligarchs. The reforms in the Bill will give us greater power and more information to identify and investigate the illicit wealth of Russian criminals, their allies and their proxies. The new property register will have an immediate effect, dissuading those intending to buy UK property with illicit funds. Oligarchs could be slapped with an unexplained wealth order—one of the tools that we will have at our disposal—and the Treasury will be better able to act when financial sanctions are breached. We are implementing the most severe package of sanctions ever imposed on Russia or on any major economy.
Mr Kevan Jones (North Durham) (Lab)
The right hon. Lady spoke about unexplained wealth orders. Does she have a commitment from the Treasury to ensure that the National Crime Agency and other agencies that deal with those orders are well financed?
Priti Patel
The right hon. Gentleman makes a very important point; I am pretty certain that he has raised several times in this House the need for legal protections, finance and an approach that gives law enforcement the tools it needs. The Bill is doing that, and we are acting not only through legislation, but through the wider way we help agencies and law enforcement to function, operate and go after those who have been undermining our system.
Alison Thewliss
My right hon. Friend is absolutely correct to point that out. This money has been around the world many times and we may never ever find out where it has come from, but we could take further action to stop it coming through bank accounts in this country, helped by lawyers and accountants in this country, and the Bill does not go far enough to deal with the people who are facilitating this economic crime.
On the register of overseas entities, Members will know that I sat on the Joint Committee with the Lords on the draft Registration of Overseas Entities Bill, because I have mentioned it several times before. I cannot understand why it took so long before we had this legislation coming before us today—and in such haste, I should say. Introducing the registration of overseas entities is intended to shed light on the individuals behind overseas companies that control property in the UK, and that is welcome, but again it is too late. The proposals were discussed in detail in that scrutiny Committee, and I still do not understand—I would like some kind of explanation from the Minister, if he would stop chatting—why the Government twiddled their thumbs for four years instead of getting on with implementing such legislation.
I should note that the Scottish Government have moved on this. The register of persons holding a controlled interest in land in Scotland will come into effect and start operating, by taking names on the register, on 1 April. I seek some information from Ministers about what exactly will be the interaction between this register of property in Scotland, which includes overseas entities, and the provisions they are trying to pass today. It has been remarked by a number of organisations that the Scottish register will actually have transparency at its heart and has better transparency than what Ministers are proposing with their register. I would ask that they go to that higher level, rather than ask Scotland to level down on what we are putting on the register of persons holding a controlled interest in land.
Transparency International has estimated that £6.7 billion of questionable funds has been invested in UK property since 2016, of which at least £1.5 billion-worth has been bought by Russians accused of corruption or links to the Kremlin. When we take into account the secret nature of these transactions and how hard it is to get the actual information, the real figure is likely to be much higher.
The Bill as it stands will give the owners of about 95,000 foreign-owned properties six months to reveal their identities. I am glad that the Government have cut that back from the original 18 months they proposed in the draft Bill, but as things stand six months gives people an awful long time to move their money, down what Oliver Bullough calls the “Moneyland tunnel”, to hide those assets and to spirit them away to where they cannot be seen and cannot be found. Such secret jurisdictions will be used by the people who want to do this.
I would like to know from the Minister whether this register will be to the same standards as the Companies House register just now, because the Companies House register is basically full of guff. I have said this many times, but someone can register a company to “Anytown, Anyplace”. I could register one in the Minister’s name if I wanted to, and if I did not give any indication that I had done that, I would get away with it scot-free. The Minister really needs to tell the House what the standards of registration for these companies will be.
Our new clause 4 suggests that Companies House should be an anti-money laundering body, and it should use the Government’s Verify scheme to make sure that a person is a real person when they register a company at Companies House. I want to know what this register of overseas entities is going to look like and how we can make sure that the data put in will be maintained.
Mr Kevan Jones
Does the hon. Lady agree that full transparency at Companies House of who owns companies is in everyone’s interests? It was only because of the investigation undertaken by Caroline Wheeler of The Sunday Times that we discovered that Viktor Fedotov was one of the beneficial owners of Aquind, a company that has given huge sums of money to individuals in this House as donations. Does the hon. Lady think it would perhaps have helped some of those individuals decide whether to accept that money if they had known that Fedotov was an owner, especially because of his track record of alleged corruption in the Transneft gas pipeline deal?
Mr Kevan Jones (North Durham) (Lab)
I too welcome the Bill, but it angers and saddens me that it has taken the invasion of a European sovereign nation, and the fact that women and children in Ukraine are being bombed as we speak, to bring it forward.
We have heard the hon. Member for Weston-super-Mare (John Penrose) say that this Bill is about closing “loopholes”. No, it is not. This situation is because of a choice that was made. My right hon. Friend the Member for Barking (Dame Margaret Hodge) said that action should have been taken earlier, and it should have been. The ISC, the Committee I sit on, said in its annual report of 2019-2021 that
“the extent of Russian influence in the UK is very clear—the previous Committee found it to be ‘the new normal’, as successive Governments have welcomed the Russian oligarchy with open arms. As a result, there are a lot of Russians with very close links to Putin who are well integrated into the UK business, political and social scene… Yet…few, if any, questions have been asked regarding the provenance of their considerable wealth and this ‘open door’ approach provided ideal mechanisms by which illicit finance could be recycled through the London ‘laundromat’”.
This situation has not happened by accident; it has happened because we have had a Government who have turned a blind eye to what is going on. It now comes as a great shock to some people that we are going to have to legislate. The Prime Minister says we are going to bring in the toughest sanctions against oligarchs, and the hon. Member for Meriden (Saqib Bhatti) has repeated that we will have the toughest rules in the world. No, we will not, because this Bill will not do that. We will have another economic crime Bill to bring in further legislation, but this issue has been around for years and this Government have turned a blind eye to it. It is no good crying crocodile tears for the people of Ukraine and saying that we are going to react now, when we could have reacted years ago and this Government took a political choice not to.
As the hon. Member for Oxford West and Abingdon (Layla Moran) said, this is also about having the right culture of enforcement, which we do not have. The hon. Member for Amber Valley (Nigel Mills) is correct that it is not just about Russian oligarchs; it is about cleaning up the entire system. For the past 10 years, the right hon. Member for Haltemprice and Howden (Mr Davis) and I have been campaigning on landfill tax fraud—another area that has been completely ignored. This Government have had a light touch on economic crime.
The security implications of the money that is around Putin were well documented in the ISC’s Russia report. All I will say—because I cannot say any more—is that this is further well documented in evidence in the secret annex, which will not be published, quite rightly, for security reasons. The Government say, “We don’t know who to go after; we don’t know what the actual extent is”, but they do.
As my hon. Friend the Member for Hammersmith (Andy Slaughter) said, as part of the will to have enforcement, we must ensure that any of the measures in the Bill are properly financed. It is no good the National Crime Agency taking a knife to a gunfight when going up against some of these individuals. That is exactly how it has been described to me by some of the individuals who work for the National Crime Agency. When I asked the Home Secretary whether she had extra resources for the NCA to implement these measures, she ducked and weaved around the answer. Without that, these measures will not be effective.
If we want a lasting testimony to do something really good and ensure that the people now suffering in Ukraine know that we are doing everything we possibly can—not the glib words of the Prime Minister, which we know are just soundbites that do not stand up to a great deal of scrutiny—then we need to ensure we bring in this Bill and very quickly bring in any other provisions to stop this illicit finance. That not only will have an effect in this area but—I agree with the hon. Member for Amber Valley on this—will clean up this country, and that is long been overdue.
Jonathan Reynolds
The right hon. Member pre-empts my comments about the timescale for implementation and the worries relating to that, and there have been some very interesting and valid speeches from all sides pointing out such dangers.
However, I want to address the fact—we have not actually heard about it in the debate today, such is the seriousness of the issues—that there is, and we should acknowledge this, an argument against the transparency that all of us are seeking. It is that there are some celebrities or people of high net worth who will cite concerns about privacy in relation to this measure. They would say that they are worried there will be potential risks to them from this register coming into effect.
Mr Kevan Jones
On transparency, and I raised this with the Home Secretary when she was here, there is the issue of Companies House. It was only because of Caroline Wheeler from The Sunday Times that we actually found out who the other shareholder is in Aquind, a company that has donated tens of thousands of pounds to individual Members of this House. That was because, strangely enough, the Luxembourg register is more open than ours. Does my hon. Friend think that, if Members wish to accept donations, this would be helpful to them, because at least they could then discover where the money actually came from originally?
Jonathan Reynolds
My right hon. Friend’s point about donations is absolutely well made. His earlier point was about how some of the things we are seeking to address with this legislation we know about because of whistleblowers and investigative journalists. It is only because of them that we have been able to get some sense of the scale of the problem, and that is what should worry us, because we have to decide, as British Members of Parliament, about the proportionality of the concerns about this. I would ask those people who have such concerns to understand that the lack of transparency in the UK, as things currently operate, does not just open us up to risks of criminal activity, but is now a threat to our national security.
Like many people, I once believed that, as countries developed and became wealthier, that created an irresistible pressure for political reforms—for strong institutions, independent courts and the rule of law—but the fact is that that has not happened in many parts of the world. We are all too familiar with stories of people who have looted the national wealth of their countries, and then stashed those assets safely here in the west. There are examples from Nigeria, Kenya, Indonesia, China, Afghanistan, Russia and many others, and I would like to thank Transparency International for its campaigning and advocacy on these matters. Ukraine itself was once a major victim of this under the corrupt presidency of Viktor Yanukovych. Such corruption often leaves behind countries that are poor and dysfunctional, where the state is starved of the resources and legitimacy it needs to function properly, and where millions are denied the path to prosperity that they deserve. In that space, extremism and terrorism can thrive, so we simply cannot allow this to go on.
Tackling this properly clearly requires international co-operation, but when it comes to registers of beneficial ownership, that co-operation does now exist. That is why there is clear consensus on this happening in relation to property in the UK. This debate has shown that the principal difference of view between ourselves and the Government, which we will obviously discuss in Committee, is what length of time is reasonable to give people to register the beneficial ownership of the near 100,000 properties that will be affected. I think people know that we want 28 days. The Government originally proposed 18 months, and I do acknowledge that they have moved some way in reducing that to six months. I also acknowledge that this is a significant change for some people in relation to their property rights.
However, I would say that this change was announced in 2016 by David Cameron. The pre-legislative scrutiny took place in 2018, and my right hon. Friend the Member for Barking (Dame Margaret Hodge) outlined some of the history of that. So this change has been a long time coming, and people have known it was coming. It is not really the 28-day implementation period we are seeking, but the six years and 28 days that that adds up to. That is why I believe it is reasonable, proportionate and necessary to ask the Government to act at speed.
The second part of the Bill proposes changes to unexplained wealth orders. I raised the problems with these orders when we had the urgent question. I am pleased to see them included as part of this Bill, and I again acknowledge that the Government have already accepted several Labour amendments on this matter. The problems with these orders relate to issues with implementation that have occurred in the courts, so it is clearly good to see those addressed. However, many Members went further in their speeches because there are concerns, because of the way that Russia operated in the 1990s, that it can be hard to use unexplained wealth orders to take the action required now. Several Members have proposed a new set of powers that could freeze relevant assets while cases are made, and again we can deal with those amendments in Committee, but I am sympathetic to the arguments put forward.
The third part of the Bill relates to sanctions and their application. People are asking us as Members of Parliament why those who have been subject to sanction by the US and the EU are not currently sanctioned by the UK. The debate today recognises that the regime laid out in the Sanctions and Anti-Money Laundering Act 2018 is not sufficient. There is clearly a widespread desire to see this improved, and proposals in this area are welcome. However, I would also say, separate to this, that there are the issues of resources and enforcement. My right hon. Friend the Member for North Durham (Mr Jones) and the hon. Member for Basildon and Billericay (Mr Baron) made that point in detail. My understanding is that, as a country, we are under-powered in the resources and capacity we devote to this. Just last month, the former Leader of the House—now the Minister for Brexit Opportunities and Government Efficiency —said he wanted to cut 65,000 civil servants over the next three years. However, this is a clear example of an area where we need more capacity, as well as the right legal regime, to do what is required. The seriousness of these matters means that the Government must devote the resources required to do that.
Foreign Interference: Intelligence and Security
Lord Beamish Excerpts(4 years, 6 months ago)
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Priti Patel
I return to my earlier comments about vetting and the support that is currently in place. We can work together to close down any issues of concern. For the assurance of not just all right hon. and hon. Members but the British public, who will no doubt be watching this debate and wondering how on earth any malign influence could enter the heart of our democracy, we will continue to work collectively to make sure we put all the protective measures in place.
Mr Kevan Jones (North Durham) (Lab)
In her statement, the Home Secretary said it was a fact that this kind of activity has become more apparent, but the United Front Work Department has been in existence since 1949, it has a budget of £3 billion a year, and for many years it has used useful fools to propagandise its arguments. May I ask the Home Secretary about universities in particular? There is evidence, certainly from Australia and other countries where tough action has been taken, that the Confucius Institutes are backed by money from the United Front Work Department. Is it not about time we closed them down, and is she content that the Department for Education is responsible for monitoring this?
Priti Patel
The right hon. Gentleman referred first to the prevalence of the activity that we are seeing. Yes, there is more activity, for a number of reasons. Technology changes, these threats evolve and develop with time, and tradecraft adapts and evolves as well. That brings me to his second point, which was about our academic institutions. This is the subject of an ongoing discussion. I have been in many committees where it has been raised, including the ISC, and it is being discussed across Government. He asks whether the Department for Education is doing enough. We have spent a great deal of time working with the Department.
Let me say something about the legislation that we want to introduce. We are learning from other countries, such as Australia—indeed, I had a bilateral meeting just last week. This is also part of the work of Five Eyes. A lot of work is being done to look at the institutional impacts of hostile state activity, alongside issues such as foreign agent registration. We want to get this right through future legislation, and that is what we are working on.
Channel Crossings in Small Boats
Lord Beamish Excerpts(4 years, 8 months ago)
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Priti Patel
It is self-evident. I do not want to enter the confused politics of the Labour party when it comes to migration, ending free movement and all of that, because Labour has resolutely voted against everything that we have done on immigration since the general election. The Nationality and Borders Bill is an end-to-end approach. There is no silver bullet. If there was, clearly we would not be seeing thousands of migrants entering our country illegally; not only that—solutions would have been found by now. Wholescale reform is vital, which is why we have the Bill. I am the first Home Secretary in 20 years to look at end-to-end reform of the system. I have worked on that reform for 18 months and introduced it in February this year. I urge all colleagues, certainly on the Government Benches, to back the Bill and focus on its delivery.
Mr Kevan Jones (North Durham) (Lab)
In response to my right hon. Friend the Member for Leeds Central (Hilary Benn), the Home Secretary was clearly not a fan of the Dublin regulation, so will she explain what negotiations are taking place to replace it? Will she also explain what we would do with individuals if we moved them to Albania or any other third country, and they failed the asylum system?
Priti Patel
First, I apologise to the right hon. Member for Leeds Central (Hilary Benn), because he did ask specifically about negotiations. There are a range of negotiations taking place, but he specifically asked about Dublin in relation to the EU. As he has heard me say already, that is an EU competency issue right now. We are having active discussions—this would not keep the Commission happy—with France, Belgium, the Netherlands, Austria, Germany, Italy, Greece, as of today Poland, and other countries. This is really important. They are having discussions with us because of their own frustration with the lack of progress in tackling wider long-term and long-scale issues around illegal migration, as well as returns and readmissions. All Governments are very much concentrating on these topics right now.
The right hon. Member for North Durham (Mr Jones) asked about third country offshoring. We will look at all options right now; it is right and proper that we do so. Not only that—we will look at resettlement routes for people who have entered our country legally and have no legal rights to be here. If they cannot be returned to their own country, it is right that we look at how we can resettle them elsewhere in the long term.
Salisbury Incident 2018: Update
Lord Beamish Excerpts(4 years, 10 months ago)
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Priti Patel
My hon. Friend is correct in the case he is making. There has to be a fair degree of openness, honesty and transparency on the acts that have taken place; lives have been lost and today’s ruling is significant, so he is absolutely right in the way in which he has been making the case, and I hope he achieves the outcome he is seeking.
Mr Kevan Jones (North Durham) (Lab)
I thank the Home Secretary for her statement, and join her in thanking the security services and all those involved. The judgment sends a clear message that even though these individuals are outside our jurisdiction, we are not going to give up pursuing them. Will she share the intelligence behind the latest developments with the Intelligence and Security Committee? I welcome her commitment to implement the recommendations from the Russia report, particularly in respect of the registration of foreign individuals pursuing other states’ interests. Those recommendations are important, but there are existing weapons in her armoury that need to be used, including against the facilitators of these acts—the estate agents, lawyers, accountants in London. If she grasps that, and her new Security Minister grasps it, she could make some great progress and hurt the Russians very hard.
Priti Patel
I thank the right hon. Gentleman for his questions and the points he has made. He is right about the tools or levers that exist across government and across law enforcement—many strong laws are in place. As ever, this is about the application of the law and the levers that could help to denude capability further, so he is absolutely right on the point he makes. On the ISC, we will be in touch directly with the Committee after today’s statement, even on the basis of how information and intelligence is shared.