National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.

The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.

As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for making that clear. It will have an impact on the way we address this whole group, because it is a very extensive group and many different groups from different sections of society have contacted us all, I suspect, and raised their concerns. I have been contacted by groups from business, the legal profession, universities and political parties. Some 400 NGOs have written to me, as I am sure they have to other noble Lords.

My Amendment 88, also in the name of the noble Lord, Lord Wallace of Saltaire, would ensure that guidance is provided on the foreign influence registration scheme. Other noble Lords have gone into more specific concerns and explorations of what particular definitions might mean.

I thought it might be most helpful in opening this group, in a sense, to raise two particularly powerful concerns that have been raised with me. I want to cite two groups that have contacted me. The first is the company AstraZeneca, which sent around an email that I thought it worth citing to show this company’s concerns, which illustrate other, wider concerns. It said:

“Clause 70, as drafted would, we believe, impose a requirement for persons in our overseas operations to register each and every dealing with not just Members of the UK Government … but also in Government Agencies such as the Medicines and Healthcare Products Regulatory Agency, The National Institute for Clinical Excellence, The Environment Agency and others where we have regular contact”


on medical issues. AstraZeneca is asking a very profound question about how far these requirements will go and how much impact they will have on its day-to-day business. The email goes much further, but that is the gist of the concern raised.

The other group that emailed me is the Law Society. Of course, all these groups, including the Opposition, support the broad aims of the registration scheme but are concerned about the practical impact and whether it will have a cooling effect on their ability to conduct their existing business. The Law Society email says:

“The Law Society supports the Government’s ambition to protect national security and ensure public safety. However, we are concerned that the proposals in this Bill could have serious implications for access to justice … Law Society members have shared significant concerns with us about the potential impacts of FIRS more generally. These include concerns … that the scheme risks damaging the UK’s largest exporting industry (financial and professional services) and its reputation as one of the world’s most attractive jurisdictions for cross-border business and trade and destinations for foreign investment.”


I have given just two examples, but there are many others. This whole scheme has raised a lot of questions in other sectors; we have heard about political parties and universities. I look forward to this being a wide-ranging debate and the noble Lord giving as full an answer as he can in summing up, but I am grateful for his confirmation that the policy will be available before Report so that, if we choose to, we will have ample time to take matters further.

[Lord Anderson of Ipswich (CB)]

My Lords, while I very much welcome the fact that this policy is under review, I hope your Lordships will agree, in view of the great interest that has been expressed in this subject outside this place, that we take the opportunity to express, at least in summary, the very grave concerns that some of us have about this part of the Bill.

In that spirit, I shall speak briefly to the five stand part notices in my name, signed also by my noble friend Lord Carlile, the noble Lord, Lord Wallace, and the noble Baroness, Lady Hayter. They would leave intact the enhanced tier, which I believe to be of real value for our national security, but if carried they would remove Clauses 66 to 70, the so-called primary tier of FIRS.

--- Later in debate ---

We have heard the concerns raised about the burdens for business that FIRS may create. The UK is and, we believe, will remain one of the best places in the world to do business. It is important to be clear that this scheme is not about obstructing or stifling the legitimate influence activities of businesses. It is there to encourage openness and transparency where activities are undertaken to influence the UK political system. We have deliberately designed the scheme to minimise the compliance burden for those falling within the scope of the requirements.

[Lord Anderson of Ipswich (CB)]

I am very grateful to the Minister. He has just mentioned for the second time the compliance burden. Earlier on, he said very reassuringly that all that would be required to register was the completion of a form. But does the Minister understand that one reason why so many people are so anxious about these provisions is that it is not simply a question of filling in a form? In addition, once you have done that, there is the ongoing and, apparently, permanent obligation to comply with any information notices, which can be given at any time, requiring information of any sort to be provided to the Government. This is against the background of an absence of statutory guarantees regarding confidential information, except for lawyers and journalists, and not even—I think I am right in saying—any indication in the Bill as to whether this register will be public. The Minister has spoken a great deal about transparency.

How is that consistent with a United Kingdom that welcomes foreign engagement? Can the Minister understand how reluctant responsible directors and trustees will be to advise engagement with United Kingdom Government authorities against the background of those potentially very onerous provisions, which are liable to cause administrative problems and render it impossible for them to keep private what is always intended to be private?

[Lord Sharpe of Epsom (Con)]

I reassure the noble Lord that the Minister absolutely understands exactly where he is coming from. I will come on to the confidentiality aspects of the question he just asked in a second.

The process will require information about those party to an arrangement, as well as a description of the arrangements and activities to be undertaken. We would not expect a detailed account of every activity to be undertaken either as part of an arrangement or by a foreign principal, but the full process will be set out in regulations, which will be laid before Parliament.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

My Lords, I listened with great interest to the argument made by the noble Lord, Lord Purvis of Tweed. I wonder whether I could ask the Minister, when he replies, to clarify the way in which the liabilities and immunities under this clause might impact, separately, the members of the intelligence services and the Armed Forces on the one hand, and, on the other hand, covert human intelligence sources, sometimes known as “agents” of the intelligence services, whose activities are authorised, I believe, under separate legislation. It does seem to me that it is very important that we should understand those two separate categories of action, and the way in which the proposed legislation would impact on those, because we are talking there about different legal regimes—although I speak as a lawyer and therefore I am willing to be corrected.

[Lord Anderson of Ipswich (CB)]

My Lords, that sounds right to me. Part 2 of the Serious Crime Act 2007 abolished the common-law offence of incitement and substituted three specific offences of encouraging and assisting serious crime. Schedule 4 expands the reach of Part 2 to the encouragement and assistance of crimes which are committed, or intended to be committed, abroad. Its provisions have been described by the Court of Appeal as “tortuous”. Professor David Ormerod, the former Law Commissioner, has written of its “incoherence” and “excessive breadth of liability”. The noble and learned Lord, Lord Judge, probably has a full and comprehensive understanding of it, but few lawyers and judges do, and even fewer can explain it to juries. It has, accordingly, rarely been used.

Intelligence officials—from what they have told the noble Lord, Lord Carlile, and me—share in the general bafflement. They cite the risk that they will be prosecuted for acts which are judged, in retrospect, to have been capable of encouraging or assisting the commission of an offence by a foreign intelligence partner. They take only limited comfort from the defence of acting reasonably in Section 50, and from the public interest test applied by prosecutors. The uncertainty, they say, prompts them to act with caution so significant as to have an operational impact.

Clause 28 proposes to address the situation by granting immunity from prosecution, in transnational cases, to those who are behaving in a way that is necessary to

“the proper exercise of any function”

of MI5, MI6 or GCHQ. No clue is given in the Bill as to how this test is to be applied. Compliance with the principles relating to the passing and receipt of intelligence relating to detainees, to which reference has just been made, would doubtless provide the answer in many cases but, as has also been said, there will be others that fall outside their scope.

The same broad immunity would be granted to members of the Armed Forces, not only for activities in support of the intelligence agencies but for any activities which constitute a “proper exercise” of the functions of the Armed Forces—whatever that means. No one has so far explained to me why such a broad immunity for the Armed Forces is necessary, even in circumstances with no intelligence connection. I hope the Minister will be in a position to do so.

I understand that the Intelligence and Security Committee of Parliament has been invited to scrutinise the justification for the claimed special treatment. I expect that it will have been shown operational examples that the noble Lord, Lord Carlile, and I, during our relatively short visit, were not. I hope that, before the Bill advances further, the committee will tell us what, if anything, it has concluded and whether those conclusions are confined to the agencies or whether they extend to the Armed Forces as well. For my part, I have general sympathy with the concerns expressed to me by agency lawyers—who are, in my experience, highly conscientious people—but, like the noble Lord, Lord Purvis, I would feel happier if I knew that an independent person or body, such as the Intelligence and Security Committee or the Independent Reviewer of Terrorism Legislation, had examined the secret materials and pronounced confidently on whether the concerns expressed to us are justified across the full range of circumstances in which they are being advanced.

However, let us assume, at least for the purposes of this debate, that there is a real problem of unquantifiable legal risk translating into excessive caution and reduced operational efficiency. Is the solution to place the agencies and the Armed Forces above the law? The question surely needs only to be asked for the answer to be apparent. We admire our intelligence and military personnel, with very good reason, but, be they never so high, the law in a democracy must always be above them. Modern intelligence co-operation means dealing with a wide range of international partners, some of them less scrupulous than others. Let there be no doubt that the crimes that some of them are capable of committing include some of the most serious of all: torture and unlawful killing. To remove all legal accountability for assisting and encouraging such acts, in particular by the sharing of intelligence, would send an unfortunate message to any person who might be tempted to cross the line. It would also send an appalling signal to the rest of the world.

Fortunately, two off-the-shelf solutions are available, each of them more palatable than Clause 28. The first is my Amendment 64, supported by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Judge. This would add activities caught by Part 2 to the scheme established by Section 7 of the Intelligence Services Act 1994—sometimes known as the “James Bond clause”, which the noble Lord, Lord Purvis, described, although it is certainly no simple immunity. Subject to further study of what he said, I do not think it does the trick without our amendment. Section 7 provides that those operating abroad, and in limited circumstances within the United Kingdom, are not liable for what would otherwise be crimes under UK law, but only if the commission of such crimes falls within the scope of an authorisation issued by the Secretary of State on tightly defined statutory grounds. Those authorisations, and the agencies’ compliance with them, are carefully scrutinised by the senior judges of the Investigatory Powers Commissioner’s Office—the successors of the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood—with the help of their skilled investigative teams. IPCO publishes its conclusions in its annual report, which demonstrates its exacting approach. The Investigatory Powers Commissioner, Sir Brian Leveson, would no doubt notify the Director of Public Prosecutions were it to find any illegality worthy of further investigation.

In this way, the requirements of the rule of law are maintained, and with three other advantages. First, and of some importance, IPCO scrutiny makes it more likely that any wrongdoing will actually come to light. Secondly, the agencies would not be exposed to police or prosecutorial investigations, unless, of course, they go beyond the scope of their authorisations. Thirdly, for any act within the scope of the authorisation the agencies have political cover from the Secretary of State, who would be unable to hang them out to dry. There would be some value in each of those matters, I would have thought, for the agencies themselves.

Like the existing Section 7, my solution would also apply to the Armed Forces to the extent that their actions are necessary for the proper discharge of a function of the security and intelligence agencies. Perhaps that limited application is all that the Armed Forces actually require, and I await the Minister’s comments on that.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

I thank my noble friend for that correction—yes, it was Ponting, not Westland. I apologise; I had the wrong incident in my mind.

My fourth point is about the life sentence contained in subsection (3) of the proposed new clause. I simply do not like tautologies such as “manifestly unjust” in criminal sentencing provisions. In my view, if there is to be a provision of this kind—we have been told that it has been drafted very carefully—it should not contain tautologous phrases like that. “Unjust” will do very nicely, as far as I am concerned.

My fifth point is about the authority for such a prosecution. The noble Lord, Lord Bethell, referred to the involvement, presumably, of the Director of Public Prosecutions in authorising such a prosecution. However, as drafted, this proposed new clause would permit a private prosecution, which could be stopped by the Director of Public Prosecutions only in certain circumstances. Private prosecutions—often justifiably—are becoming more fashionable and frequent, particularly in fraud cases which the authorities are not able to undertake for reasons of scale and cost. Those are perfectly defensible private prosecutions, as results in the courts have shown. However, the use of private prosecutions for oblique motives in this context seems to be a very realistic possibility. I therefore urge that if we are to have a revised treason offence, it should be prosecutable only with the authority of the Attorney-General.

Finally, the House should pay very close attention—I would say this, as a former Independent Reviewer of Terrorism Legislation—to the views of Jonathan Hall KC, who has considered this matter in detail and with whom I agree. I also simply pose a rhetorical question: who seriously thinks that ISIS would be discouraged in any way whatsoever by the introduction of this clause? The Government are right in the decision they have taken, and I hope that they will stick to their view.

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.

Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that

“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]

No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.

If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.

This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.

I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.

As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—

“is a specific crime against society and one that deserves punishment.”

I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it

“conducive to the public good”.

Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.

This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.

My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.

[Lord Purvis of Tweed (LD)]

My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.

From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.

I welcome proposed new subsection (2)(e), which references acts that

“prejudice the security and defence of the United Kingdom”.

This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.

I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.

I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when

“access to the information, document or other article is restricted in any way”,

as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—

that way being entirely unspecified.

It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.

This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.

[Lord Anderson of Ipswich (CB)]

My Lords, I apologise for not being present at Second Reading. I cannot even claim, like the noble Lord, Lord Purvis of Tweed, that I was broadcasting the benefits of line-by-line scrutiny to a foreign power. I was performing a long-arranged judicial function in the Channel Islands.

I am well disposed in principle to Clause 1, and I entirely understand why the concept of protected information is not limited to “secret” or “top secret”, as the JCHR recommended. However, in the interests of obtaining a little more clarity, perhaps I might press the Minister on this point. Paragraph 63 of the Explanatory Notes states:

“Protected information includes, but is not limited to, classified material.”


Three examples are given. One is about information on the identity of police officers working with security and intelligence services. One is about information on intelligence officers operating in a foreign state. I suspect that they do not get much more classified than that. One is classified information on a defence system.

Bearing in mind that those examples appear to relate to classified information, I would be grateful if the Minister could explain, first, what circumstances he can envisage in which it should be an offence to obtain or disclose information that is not classified, or that could not reasonably be expected to be classified, applying Clause 1(2)(b). Secondly, how is one supposed to know that non-classified information is protected, given that the only controlling factor, other than the purpose of protecting the safety or interests of the United Kingdom—which, as the Committee has just heard, is very broadly framed—is that access should be restricted in some way? On one view, “restricted” could apply to anything, however innocent, that is not actually published. I assume that such a broad meaning is not intended, but could the Minister give us more of a clue as to where the line is drawn?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.

His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have

“damaging consequences if lost, stolen or published in the media”

but is

“not subject to a heightened threat profile.”

The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.

As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.

Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Skidelsky (CB)]

My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord Paddick.

I agree with the noble Lord, Lord Coaker, that we are not living in a totalitarian state, but George Orwell also warned of the slide from democracy to despotism: it becomes invisible so that, in the end, you cross a border without really knowing that your freedom has been taken away because you do not want to do anything that might lead to anyone wanting to take it away. We have not got there yet. Nevertheless, it seems that we are discussing areas of legislation in which we find, as the noble Lord, Lord Paddick, said, blocks of words being transferred mindlessly from one set of offences to another set of offences, rather like prefabricated hen houses. One has to guard against that, because the offences are of very different gravity and one must not use the same language when talking of one rather than the other.

Part 2 introduces the serious disruption prevention order, described by Liberty as a protest banning order, which gives police the power to ban a person who has not been convicted of any offence for up to two years from attending any protest, together with extraordinary powers of surveillance, including electronic surveillance. Now I am against prevention orders on the whole, because they tread the path of stopping the liberties of people who have not been convicted of any offence. That is the road down which they lead, so I am suspicious of that in principle.

Here, we have a penalty which can be imposed on a civil standard of proof, meaning that the conditions needed for being given an SDPO need to be proved only on a balance of probability. That compounds the offence. The Government are not only taking powers to inflict extraordinary penalties on someone who has not been convicted of anything, they are also claiming the power to do that on a balance of probabilities, rather than on having reasonable suspicion. That is what this amendment wants to remove and there are subsequent amendments to which the same logic applies. We need to put in a requirement of reasonable doubt into the whole series of these preventive disruption orders.

[Lord Anderson of Ipswich (CB)]

My Lords, I gladly put my name to the stand part amendments on Clauses 19 and 20, which of course stand for Part 2 as a whole, not because I am temperamentally inclined against compromise but because these clauses are so breath- takingly broad that I am not sure I would know where to begin the process of amendment.

Seeking perspective, I turned to the civil orders with which I am most familiar, terrorism prevention and investigation measures, or TPIMs, the replacement for control orders, mentioned by the noble Lord, Lord Paddick, which are currently being copied, I think reasonably, for hostile state actors in the National Security Bill. These are the most extreme forms of restriction known to our law, short of imprisonment. In a rational world, were measures such as these considered necessary in the completely different context of public order, they would be considerably lighter—but, in no less than six respects, the reverse is true. I shall briefly explain how.

The first respect is the trigger. TPIMs can be imposed only when it is reasonably believed that the subject is or has been involved in terrorism-related activity and that the TPIM is necessary to protect the public. An SDPO can be imposed under Clause 19 on someone who twice in the past five years has been convicted of something as minor as obstructing the highway, if an order is thought necessary to prevent them doing so again. Under Clause 20, the person need never have been convicted of anything, though of course if they breach any provision of their SDPO then, just like the suspected terrorist, they can be convicted and sent to prison.

The second respect is content. The range of TPIMs is limited to the specific measures specified in the Terrorism Prevention and Investigation Measures Act 2011. The Bill, by contrast, makes a virtue of the fact that the range of SDPOs is completely unlimited—a point emphasised in Clause 19(6), Clause 20(5) and again in Clause 21(7). Notification requirements seem to be envisaged as routine—as, remarkably enough, is electronic tagging—but these orders can require the subject to do, or prohibit the subject from doing, anything described in them. The extensive list of prohibitions in Clause 21(4) is for some reason not considered sufficient. The right to peaceful protest is not even referred to in the Bill as a consideration to which those imposing the orders must have regard, despite the obvious potential for these orders to inhibit the exercise of that right.

Counterterrorism: Martyn’s Law

Lord Anderson of Ipswich Excerpts

Wednesday 23rd November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his question. The Contest strategy is the Government’s counterterrorism strategy and has the four Ps at its core, one of which is Prevent. Many sections of the community are engaged with that and the Government expect to publish an updated and enhanced version of Contest early next year.

[Lord Anderson of Ipswich (CB)]

My Lords, notwithstanding the horrific slaughter of young people in the Manchester Arena, a clear majority of the 100 or so deaths from terrorism in Great Britain this century have been on public transport or on the streets of London. Knowing the risks, we still prize the ability to run for a train or hop on a bus without submitting to checks or scrutiny of any kind. Does the Minister agree that we need to reflect long and hard before requiring precautions at public venues that are not required on public transport? I think particularly of the hundreds of thousands of small venues, such as cafes or parish churches, where there may be no money to spare and no specific threat.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.

However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.

Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.

I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where

“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.


If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.

This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.

In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,

“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”


Clause 3(3) says,

“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”

I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?

In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action

“was done wholly or mainly in contemplation or furtherance of a trade dispute”,

the person has a reasonable excuse, but Clause 6(2) says that

“It is a defence for a person charged with an offence”.


Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.

We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—

“to another object or to land.”

Nor is there any requirement that serious disruption be caused; it is enough that the act

“is capable of causing, serious disruption”,

a term undefined, at least so far, and that you are “reckless” as to whether it does so.

When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.

The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:

“There is a strong interest in bladed articles not being carried in public without good reason”.


The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.

As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.

The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.

I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.

--- Later in debate ---

[Lord Marlesford (Con)]

My Lords, having not spoken at Second Reading, but having listened to the debate, I want to contribute one thought which I think follows rather well from what the noble Baroness, Lady Fox, said. This debate on the definition of the word “serious” is really pretty sterile. Talking about the word “serious” is rather like talking about whether a work of art is good or not good. What we are really talking about is judgment, and the judgment of many different groups: of the demonstrators, of the police, and of the courts and within the courts—juries, magistrates and all the rest of it. All we are striving to do is to get what the people as a whole—who are demanding something better than what is happening at the moment—want: better solutions when things happen. I do not believe that we can be precise in laying down in law what is serious or not serious, but that does not mean that we cannot use the word “serious” as shorthand for the collective judgment of all those interests involved.

[Lord Anderson of Ipswich (CB)]

My Lords, the noble Lord, Lord Hain, with his proud record of disruption, cautioned us against forensic critiques. I am afraid that he is in for another one, but in my defence, I will make it very short.

The Minister hinted at the end of Second Reading that he would give thought to a definition of “serious disruption”, which I think would be useful. That is certainly what police witnesses suggested in another place, and what some of us, including my noble friend Lord Hogan-Howe, suggested at Second Reading. I am grateful to the Minister for the opportunity to discuss it yesterday.

I put my name to Amendment 17, recommended by the Joint Committee on Human Rights, which is based on part of the definitions in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022. Having now had a chance to review Amendments 6, 27, and 38, in the name of my noble and learned friend Lord Hope, I am minded to jump ship—I hope that does not make me a rat—because I think his amendments may be better adapted to the purposes of the Bill.

The particular merit of my noble and learned friend Lord Hope’s approach is to recognise that the offences in Clause 1 on the one hand and Clauses 3 and 4 on the other are very different in nature. Disruption consequent on locking on is liable to be caused to any individuals or organisation based or carrying on business in the locality, and it is right that the definition should acknowledge this. Equally, it seems right that the threshold should be a very high one: “prolonged disruption of access” to homes, workplaces or other places to which there is an urgent need to travel, or

“significant delay in the delivery of time sensitive products or essential goods and services.”

That latter condition about significant delay appears in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022 but has, for some reason, been omitted from the JCHR definition.

The tunnelling offences are of a different nature. The serious disruption that they seek to address is to “construction or maintenance works” or related activities. Amendments 27 and 38 appropriately reflect that narrower scope.

If the Government are going to come back with a definition, or definitions, of “serious disruption”, I hope they will see the force of doing it in this way. My noble and learned friend Lord Hope modestly suggested that they might be able to manage something more proportionate and carefully phrased than he did—all I can say is, good luck with that.

Public Order Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, in the case of Tabernacle v Secretary of State for Defence, the late, lamented Lord Justice Laws said:

“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind. In that case, firm but balanced regulation may well be justified.”


That comment, itself both firm and balanced, is the lodestar by which I judge this Bill. The Public Bill Committee in another place heard detailed evidence of the disruption to transport networks and key national infrastructure caused by recent protests, including against projects given clearance to proceed after a prolonged and painstaking democratic process. HS2 said it spent £126 million to the end of March this year in removing protesters, including from a 25-tunnel network under Euston station where the protesters were using lock-on devices underground. National Highways pointed to incidents in which hours of gridlock had been caused by people gluing themselves to lorries, roads or infrastructure—for example, at Dover—and evidence was given of disruption to fuel distribution nationwide and to thousands of air passengers because of attempts to stop a flight from Stansted seeking to deport those whose legal rights had been exhausted.

This sort of organised and highly disruptive behaviour is a breach of the delicate compact, referred to by the noble and learned Lord, Lord Hoffmann, in the case of R v Margaret Jones, by which civil disobedience on conscientious grounds is accommodated by the community for as long as the protesters behave with a sense of proportion and do not cause excessive damage or inconvenience.

If the current arsenal of criminal offences and powers to seek injunctions is not adequate to the task and could be usefully expanded—a question on which the Minister will have to make the Government’s case, and on which I will be interested to hear the vast collective experience in public order policing of the noble Lords, Lord Hogan-Howe, Lord Blair and Lord Paddick, even if their opinions do not coincide on every point—then it seems that we have a duty to do something about that. However, two important elements of the Bill seem, on any view, excessive: the no-suspicion stop and search power in Clause 11 and the serious disruption prevention orders, which it is proposed to entrust to magistrates. Neither power is without precedent in our law but I question whether the precedent of exceptional measures targeted at terrorism, gang violence and sexual harm are appropriate ones to follow here.

On no-suspicion stop and search, the Government rely in their human rights memorandum on the Roberts case on the Section 60 power. I accept that many of the same safeguards that attend this highly unusual power are present in the Bill, but would our courts accept the proportionality of a no-suspicion power to search for bicycle locks and handcuffs as easily as they accepted, in Roberts, the life-saving Section 60 power to search for bladed instruments and other offensive weapons? That seems far from evident.

The characterisation of the proposed SDPOs as protest banning orders is potentially confusing. They do not ban protests, peaceful or otherwise, but they do perpetrate a more subtle mischief. They are expressly unlimited in their content, as in Clause 21(7), and renewable indefinitely—unlike TPIMs, the equivalent restraints on suspected terrorists. They are backed up by the whole sinister apparatus of tags, curfews and reporting requirements. The central estimate of the Government’s own impact assessment is that 400 persons per year will be restrained by such orders, 200 of them otherwise than during sentencing after conviction. If passed into law, they would prevent or inhibit principled, conscientious and even, under Clause 20, wholly law-abiding individuals exercising their fundamental right to participate in lawful protests. Is that the kind of country we want to live in? It would not be Belarus, but I would not want to live there.

I hope we will also look positively on numbers 1 to 11 of the amendments drafted by the Joint Committee on Human Rights in its rather moderate report, which there does not seem to have been much time to debate in the other place or to address in the Government’s brief written response. Perhaps I may end with questions on three issues arising from those proposed amendments.

First, the concept of serious disruption runs through the whole Bill and needs, to quote the evidence in another place of the West Midlands Police,

“as much precision … as possible”.—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]

Why should some definition of it not be given in the Bill? The Joint Committee has made some useful suggestions.

Secondly, a reverse burden of proof has in the past been held to be compatible with the presumption of innocence only if it can be read down, using Section 3 of the Human Rights Act, so as to impose an evidential rather than a legal burden on the accused. Is that how the Government read the various requirements that the Bill places on defendants to prove a reasonable excuse? Will the so-called Bill of Rights, which would remove Section 3, be taken out of cold storage, and what will be the position if it is? What is the objection to reframing those clauses so that the absence of reasonable excuse is an ingredient of the offences themselves?

Thirdly, the Government have shown themselves keen in other contexts to specify matters to which judges should have regard when exercising discretions. Hard-pressed magistrates are given huge responsibilities under the Bill in relation to the public interest defence and, if we pass them into law, prevention orders. Why would we not want to remind those magistrates in the Bill of a factor that is nowhere mentioned in it, and that it will be only too easy for them to overlook: the importance in a democracy of the right of peaceful protest?

Queen’s Speech

Lord Anderson of Ipswich Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, we are armed to the teeth against terrorism, but laws to counter the arguably more significant threat of hostile state activity are few, outdated and largely ineffective, so I welcome in principle the long-delayed National Security Bill published yesterday.

No doubt we will give careful scrutiny to the proposed state threats offences, but more striking, to my mind, is the omission from the Bill of two matters that were trailed in advance and formed the bulk of last year’s consultation. The first is the foreign influence registration scheme—a tricky one to pull off, as demonstrated by its troublesome American precedent, the Foreign Agents Registration Act. The second is reform of the Official Secrets Act 1989, which would raise complex and sensitive issues including whistleblowing, the criminal liability of journalists and the question of a public interest defence. The noble Baroness, Lady Williams, indicated earlier that the registration scheme will be introduced during the passage of this Bill. Can the Minister tell us when? Can he confirm that reform of the 1989 Act will not be introduced to this Bill during its passage?

Then there is the Northern Ireland Troubles legacy and reconciliation Bill. The NIO proposals of July 2021 did not impress with their thoroughness or inclusivity, but with a new approach promised and a Minister with the understanding of the noble Lord, Lord Caine, we must hope for better things when the Bill arrives.

The DCMS will need to lose its habit of referring to the Online Safety Bill as a world-first online safety law, political agreement having been reached last month on the EU’s Digital Services Act, now endorsed, rather surprisingly, by Elon Musk, whose views on free speech seem to be evolving rapidly. Seeking as it does to address abuses thrown up by a technological revolution, the Bill has been compared in its significance to the Factories Acts of the 19th century. The noble Lords, Lord Hunt of Kings Heath and Lord Wolfson, were right to point to some of its difficulties. We have some interesting debates ahead.

The so-called Bill of Rights will not live up to its grand title. The devolution settlement on the one hand and the trade and co-operation agreement on the other severely limit the room for manoeuvre where the ECHR is concerned—and a good thing too. I echo the view of the noble and learned Lord, Lord Hope, that most of the proposed changes to the Human Rights Act appear somewhere on the dial between “pointless” and “harmful”.

The right honourable Sir Peter Gross and his expert panel—hand-picked by the Government, including from the ranks of Policy Exchange—produced a thorough, balanced and remarkably harmonious report on Human Rights Act reform that is a model of its kind, and the Lord Chancellor might have done well to heed it. I hope this House will ensure that the report’s wise recommendations are not forgotten as we consider the Bill.

The data reform Bill also merits a degree of wariness. The benefits claimed for relaxing the GDPR regime, tempting as they may be, will need to be weighed against the complications for business of complying with a further set of rules, and against the risk that changes proposed in the consultation could imperil our precious adequacy agreement from the European Commission. The proposal to reduce the independence of the Information Commissioner’s Office recalls debates that we had in the last Session about the independence of the office for environmental protection and the Electoral Commission and concerns expressed by the Joint Committee on the Draft Online Safety Bill about the independence of Ofcom.

The desire to increase the influence of government over nominally independent regulators is, unfortunately, not the only systemic abuse of executive power with which we are confronted in recent, current and promised Bills. Your Lordships, not least through last year’s dramatically titled committee reports that have already been referred to, have grumbled persistently over the increasing tendency towards skeleton Bills and overbroad delegated powers. Our debate on this issue on 6 January revealed a striking unanimity of opinion. However, grumbling will get us nowhere. Today we have heard a stirring call to arms by that unlikely revolutionary, the noble and learned Lord, Lord Judge. I agree with him, the noble and learned Lord, Lord Mackay, and a growing list of other noble Lords in today’s debate that we need to address this issue at source by rejecting the worst of these clauses when they are proposed. Perhaps the Brexit freedoms Bill, an executive power grab over the repeal and replacement of vast swathes of retained EU law, will by its sheer scale and audacity bring this issue to a head.

Finally, although this was not trailed in the Queen’s Speech, it seems that we may once again be invited to breach, or to facilitate the breach of, the Northern Ireland protocol, which was freely concluded in October 2019 and has been binding in international law since it entered into force in 2020. It could surely not be right for this House to make itself complicit in a patently unlawful scheme even if, as I very much doubt, there were short-term diplomatic advantage in doing so. We emphatically rejected such an invitation in the internal market Bill, and I hope that if the need arises we shall do so again.

Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)

Lord Anderson of Ipswich Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, this country can be proud of its historic contribution to the EU’s joint effort on policing, law enforcement and security. We were not, of course, in at the start of everything. However, we can take credit for a great deal: the policy and legislative framework for countering terrorism, borrowed largely from our own; the reinvention of Europol as a vehicle for intelligence-based policing; the repurposing of Eurojust to accommodate our distinctive prosecutorial systems; the huge contribution made by our courts to resolving conflicts of laws under the Brussels convention and regulation; and the promotion of legislation—notably in relation to the use of data for crime-fighting—where UK influence in the Council and the Parliament gave much-needed emphasis to operational imperatives over some of the more academic notions of privacy.

All this provides a good example of the wider truth, perhaps better understood abroad than at home, that EU membership was not something sinister that others did to us but rather an effective vehicle for the export of British values and traditions to a reunited continent and a wider world. To be fair to the promoters of Brexit, the unravelling of police and judicial co-operation rarely featured in their vision of the sunlit uplands. The debate over the Protocol 36 opt-out had already convinced Theresa May and most others in government that the country’s security was better served inside than outside these EU mechanisms. Part 3 of the TCA was thus, to a large extent, an exercise in damage limitation with few, if any, gains to be expected. It is some comfort that, subject to anything the noble Lord, Lord Evans of Weardale, will say, co-operation between intelligence agencies will continue undiminished outside EU mechanisms.

I had the privilege of serving on the sub-committee that produced this report, chaired with deftness, humour and virtual conviviality by the noble Lord, Lord Ricketts, and serviced by our excellent staff. The litany of committees, contact points, liaison officers and double-keying described in its pages seems to me at least a poor exchange for the seamless operation and strategic leadership that we used to enjoy. Online crime in particular knows no borders, and policing needs to reflect that as far as possible, both at home and internationally. However, while there were predictable disappointments in the TCA, there were negotiating successes too. We have a solid base for closer integration in the future, although that integration is unlikely to be on British terms and its speed will no doubt be a function of political temperature as well as operational need.

I end with a few questions. Can the Minister tell us how the numbers of those being surrendered to the UK are holding up, given the loss of access to SIS II at the end of 2020 and the unwelcome fact that 12 member states, comprising more than half the population of the EU, have declared that they will be invoking their constitutional rules as a reason not to surrender their own nationals to the UK, or to do so only with their consent? Does the Minister know when the EU might, in the interests of its own people as well as ours, withdraw its short-sighted bar to UK accession to the Lugano Convention?

Lastly, Part 3 of the TCA depends on the maintenance of high standards on both human rights and the protection of personal data. Brussels is no doubt looking carefully at two recent consultations, by the Ministry of Justice on human rights reform, and by the DCMS, entitled Data: a New Direction. On data, the Centre for European Reform in a report of 15 November last year wrote:

“There are three scenarios, any one of which could kill the EU’s adequacy decision: the European Court of Justice … ruling that the UK’s intelligence gathering should have prevented the Commission granting adequacy; the Commission choosing to withdraw adequacy because the UK diverges too far from the GDPR in the future; or the UK unilaterally deciding to allow seamless transfers between the UK and third countries, which would probably compel the Commission to revoke the adequacy decision.”


Some of the proposals in the DCMS consultation seem in that context rather close to the bone. So my final question is: what assurance can the Minister give the House that Part 3 of the TCA will not be placed in jeopardy by the weakening of current protections for data and for human rights?

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I join noble Lords in thanking the noble Lord, Lord Ricketts, for securing this debate. I also thank those who contributed to the former European Union Committee’s thoughtful and insightful report Beyond Brexit: Policing, Law Enforcement and Security, which was published in March 2021. I echo his words on Ukraine. It is important that we work with our EU partners, particularly at the moment, and that we are a united force in efforts to support Ukraine and to support the refugees fleeing from Ukraine. I updated the House yesterday on the number of visas issued, which as of yesterday morning was 1,305. That figure is going up rapidly, which is a good thing.

The Government responded to the report at the time, but it is welcome that time has been found to discuss these important matters more fully. The report was informed by the work conducted by the Security and Justice Sub-Committee, which the noble Lord, Lord Ricketts, previously chaired. I pay tribute to the breadth of expertise on that committee, which has been replicated in its successor, the Justice and Home Affairs Committee.

The Security and Justice Sub-Committee’s work was instrumental in supporting parliamentary scrutiny as we sought to consider, and ultimately negotiate, our new relationship with the EU on law enforcement and criminal justice matters. To echo the words of the noble Lord, Lord Ricketts, and others, I am very pleased to be able to speak to this as it informs a lot of the aspects of my work and it has not been much debated in Parliament. Before we start, I also want to echo the points made by the noble Lord, Lord Evans of Weardale, on national security and intelligence sharing. The decisions about that are outwith the TCA and the EU, and that is a very good thing.

I will start with law enforcement and criminal justice in the TCA before responding to some of the points made during this debate. On the deal we secured, the Government were very clear in wanting to deliver a security deal with the EU that gave our law enforcement the tools and the co-operation it needs to keep the public safe. That is what we delivered. The UK-EU TCA was signed in December 2020 and was implemented in domestic law via the European Union (Future Relationship) Act. Part 3 of the TCA established our new law enforcement arrangements, and they are the terms we have been operating under since 1 January 2021. I think noble Lords will bear in mind that this period coincided with a global pandemic, so in some ways time will tell better how this is operating because we have been in such an unprecedented environment.

The agreement was unprecedented for the EU in terms of co-operation with a third country, and through it we were able to secure a high level of co-operation on key capabilities, including: streamlined extradition arrangements, arrangements with Europol and Eurojust that reflect the scale of our contribution to these agencies; arrangements enabling the continued, fast and effective exchange of national DNA and fingerprint data and future exchange of vehicle registration data via the Prüm system; arrangements enabling the fast and effective exchange of criminal records data; and arrangements providing for continued transfer of passenger name record data from EU airlines. We were pleased to see that the report broadly welcomed these arrangements and the co-operation that they facilitate.

The operation of the new arrangements has been discussed positively and negatively in the debate. I am pleased to note that during the first meeting of the Specialised Committee on Law Enforcement and Judicial Cooperation, the UK and EU agreed that overall implementation of the law enforcement and criminal justice part of the TCA has gone well and that the agreement is operating effectively. For example, the exchange of DNA and fingerprint data continues. Since connecting to the Prüm biometric data-sharing system in July 2019, the UK has received more than 13,000 DNA and fingerprint matches from EU member states. EU member states have collectively received more than 45,000 matches from UK data over the same period. This allows UK and EU law enforcement to progress serious cases where crime scene evidence would otherwise be unidentified, such as in rape and murder cases.

Significant volumes of criminal record data continue to be exchanged between the UK and EU member states, enabling us to better protect the public. Between April and June 2021, we received around 3,500 conviction notifications from EU member states relating to UK nationals. This compares with around 2,500 notifications for the same period in 2020. UK law enforcement and criminal justice partners also continue to co-operate via EU agencies Europol and Eurojust, including on issues such as small boats. The transfer to the UK of PNR data for flights between the EU and the UK continues. Processing of PNR data during 2021 enabled the disruption of several hundred attempts by organised immigration crime groups to facilitate the illegal entry of individuals to the UK on scheduled flights.

Since the committee’s report was published, a number of the outstanding issues the committee noted have been resolved. The Partnership Council, the mechanism for supervising and overseeing operation of the TCA, has been established and met for the first time in June 2021. The Specialised Committee on Law Enforcement and Judicial Cooperation has also been set up and met for the first time in October 2021. The agenda and minutes were made available to Parliament and published on GOV.UK.

As foreseen in the TCA, we have signed working arrangements with Europol and Eurojust. These came into effect last year and set out the practical and operational detail of co-operation under the TCA, putting operational co-operation with these institutions on a firm footing for the future. We have also made important progress concerning the evaluation of our DNA and fingerprint capabilities under the Prüm system, as required by the TCA.

While the terms of our co-operation with EU member states may have evolved, shared threats remain ever present. Clearly, Russia’s invasion of Ukraine, a flagrant breach of international law and norms, is a stark reminder of that. I hope I have made it very clear to noble Lords that the UK is firmly committed to co-operating with our EU partners on matters of shared security. The TCA puts us in a very strong position from which to move forward.

I turn now to some of the specifics raised by a number of noble Lords, in no particular order. I think the most commonly asked question was about our disconnection from SIS II. The EU took the position throughout negotiations on the TCA that it was legally impossible for a third country outside the Schengen area to participate in SIS II. That means we have returned to co-operating with EU member states via Interpol, as we did before 2015, and bilateral channels, as we have done throughout with other international partners outside the EU.

Having now returned to Interpol channels, we are routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. We are also investing in longer-term technical capabilities to support law enforcement and data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.

The noble Lords, Lord Anderson, Lord Ricketts and Lord Paddick, and maybe others, asked about Interpol and double-keying. We are committed to working with the wider international community to ensure that Interpol continues to be an effective tool for law enforcement co-operation. For example, the Government secured commitments at the meeting of G7 Interior Ministers in 2021 to enhance the effectiveness and operational value of Interpol’s tools and capabilities.

On the differences between data being available via Interpol versus what was previously possible with SIS II —I think this goes some way to answering the question from the noble Lord, Lord Ponsonby—there is an automated upload of incoming Interpol circulations to domestic systems. Information is available via policing systems within the hour of receipt. If the NCA is notified that a case is urgent, specific alerts can be uploaded to domestic systems more rapidly. As noble Lords touched on, we are also investing in longer-term technical capabilities to support law enforcement data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.

On progress on I-LEAP, the first priority of the programme is to further enhance connectivity to Interpol. We recently launched two pilots that are testing I-LEAP’s real-time connection to Interpol alerts on subjects of interest in a live environment. Its gradual rollout to UK policing will commence later this year, following the conclusion of the two pilots.

Several noble Lords referred to the new extradition arrangements we have put in place. The agreement with the EU provides for streamlined extradition arrangements based on the exchange of warrants between judicial authorities, similar to the EU’s arrangements with Norway and Iceland. They will enshrine key domestic extradition safeguards that were previously not contained in the EAW, or European arrest warrant, framework decision. This includes making it clear that a person cannot be surrendered if their fundamental rights are at risk, if extradition would be disproportionate or if they are likely to face long periods of pretrial detention. We estimate that these new arrangements are functioning well. Since January 2021, arrests on extradition requests between the UK and the EU and vice versa have continued, and cases are proceeding through the courts.

On extradition disruption, there are some very specific issues concerning a handful of member states’ operation of the new extradition arrangements. These issues have largely been resolved. Where this remains live with one member state, we continue to engage to resolve this as swiftly as possible.

The noble Lord, Lord Anderson, asked about bars on extradition of own nationals. They are a common feature of arrangements outside the EAW, which neither the UK nor the EU sought to retain during the Brexit negotiations. That is why the TCA enables countries with a relevant fundamental principle or practice of their domestic law to refuse to extradite their nationals to face trial or serve a sentence.

Through the TCA we have ensured that alternative paths to justice are available for those who want to face trial. The agreement provides for a mechanism whereby a person could be extradited to the UK, face trial then return to their home country to serve their sentence.

The noble Lord, Lord Hannay, asked about statistics on this. The NCA, the National Crime Agency, is responsible for the collation and publication of data relating to extradition requests to and from the UK and EU member states, and it publishes the data on an annual basis. The last set of data was published in May 2021, and I understand that the next set is due to be published in spring 2022.

Noble Lords asked about the extension to the Prüm evaluation period and whether the EU could suspend Prüm co-operation. The EU and the UK mutually agreed to trigger the provisions in the TCA, which had foreseen that an extension might be necessary. Prüm DNA and fingerprint exchanges are continuing as normal. Following the visit of the EU evaluation team to the UK on 23 to 25 November last year, I remain confident that the UK will satisfy the requirements of the EU evaluation in this area and retain access to DNA and fingerprint exchange capabilities.

The noble Lord, Lord Ricketts, asked why the UK does not exchange vehicle registration data with EU member states under Prüm. We are working with the DVLA and UK policing partners to prepare our systems for connection. The UK will be required to undergo a pre-connection evaluation, including test exchanges and a pilot run, when the time comes.

The implementation period for PNR data transfers has been extended. We agreed an implementation period while the UK scopes, designs and implements a capability that meets the new and unique requirement in the TCA for deletion of EU PNR data that does not need to be retained.

The noble Lord, Lord Ricketts, and other noble Lords also asked about Europol and Eurojust. The agreement provides for a relationship with Europol and Eurojust that reflects the scale of our contribution to the work of the agencies and facilitates continued close and effective co-operation. For example, it preserves the UK’s access to Europol’s core capabilities, including the presence of a UK liaison bureau in agency headquarters and access to the agency’s valuable multilateral co-ordination and analytical functions. It also demonstrates the UK and EU’s intent to ensure that data exchanges happen as quickly as possible.

On our relationship with Europol, which both the noble Lord, Lord Ricketts, and my noble friend Lord Davies of Gower asked about, the UK co-operates closely with Europol via the terms of the TCA as well as the UK-Europol working and administrative arrangement, in a way which protects and enhances respective capabilities.

I am running out of time, but I want to say something about Russia and the relationship with Interpol. We will continue to work with Interpol to uphold the organisation’s integrity and to ensure that members are not able to misuse its systems for illegitimate purposes. We are confident that, with strong, continuous support from the UK and our international partners, Europol’s robust checks and mechanisms will be sufficient to prevent misuse of its systems by any member.

The noble Lords, Lord Anderson and Lord Ricketts, asked about data adequacy. Our data protection standards were rightly recognised in our adequacy decisions secured in June of last year. We remain committed to high data protection standards, and this commitment is reflected in the data protection safeguards incorporated into the TCA. Adequacy decisions complement the TCA, which delivers a comprehensive package of capabilities that ensure that we can continue to work with counterparts across Europe to tackle serious crime and terrorism, protecting the public and bringing criminals to justice.

On Part 3 of the TCA—law enforcement and criminal justice provisions—we agree that good data protection underpins international law enforcement co-operation, which is why the UK is firmly committed to maintaining high data protection standards now and in the future. Co-operation under Part 3 is not dependent on adequacy, and there is no legal link between the two. This would have been unprecedented for an agreement of this nature. The noble Lords, Lord Hannay and Lord Ricketts, asked a pertinent question on DCMS data reform. The EU rightly recognised our standards during the adequacy assessment process, but, as the European Data Protection Board and the European Commission have reiterated, a third country does not need identical legislation to be considered equivalent.

I turn finally—as I am out of time—to the Lugano Convention. The noble Baronesses, Lady Goudie and Lady Hamwee, and the noble Lord, Lord Ponsonby, asked about this. The UK’s application to accede to the convention is sensible and pragmatic, and forms a good basis for continued civil judicial co-operation. It is clearly in the mutual interests of the UK and EU/EFTA citizens, families and businesses. It is an international agreement specifically open to third parties with no requirement for single market membership, and the UK meets all the criteria for accession. Switzerland, Norway and Iceland have consented to the UK joining but, on 23 June last year, the European Commission issued a formal diplomatic note to the Swiss depositary, stating that the European Commission was

“not in a position to give its consent”

to UK accession. This means that the depositary cannot at present invite the UK to join. Several member states see value in our accession to the Lugano Convention and express warm support while others are still undecided or, we might say, lukewarm. We will continue to engage with EU member states about our Lugano application but, given the EU’s stated position, it does not seem likely that they will consider our application at this time.

In concluding, I thank noble Lords, particularly the noble Lord, Lord Ricketts, not only for their contribution during the debate but for the insight, dedication and hard work that has gone into producing the Beyond Brexit report.

[Lord Anderson of Ipswich (CB)]

Before the Minister sits down, she made a most intriguing reference when discussing extradition to a small handful of states where specific problems had presented themselves, and to one state, if I heard right, where those problems continue. Is she able to be any more specific?

[Baroness Williams of Trafford (Con)]

I wondered if the noble Lord might intervene on that. Yes: it is Cyprus.