National Security Bill

Lord Beith Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I got involved in Committee—my only appearance on the Bill—because of concerns brought to my attention about the impact of the registration scheme on huge swathes of ordinary, everyday business and commercial activity. I was much encouraged that at that stage my noble friend the Minister said that this was under review. I am more than pleased with the actual outcome. I know that once a Bill has been published it is very hard for the Government to do a radical overhaul, so we have to pay tribute to my noble friend the Minister and the Security Minister in the other place for having the courage to say that what we started with would not work well enough and to come back with such a significant set of revisions on Report. I thank him again for all he has done to achieve this.

[Lord Beith (LD)]

My Lords, I think I failed to hear something the Minister said earlier relating to Amendment 110A. I raise it because the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, are both unable to be in the House this afternoon for various compelling reasons. The amendment helpfully tidies up part of the provision by ensuring that the reference to arrangements entered into before the clause comes into force does not apply to arrangements that have ceased to have effect. I think the Minister indicated that he was going to accept it and therefore, I presume, move it at the appropriate stage.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Baroness, Lady Hayter, raised valid areas with regard to the sometimes complex relationships between political parties and the Governments of states, which I hope the Minister, who referred to foreign Governments, can go a little further and point to. It is absolutely right that that is one of a number of criteria set down earlier in the Bill, in Clause 32, and that the meaning of a foreign power includes

“a political party which is a governing political party”.

There will still be issues when it comes to relationships such as demand and supply and other kinds of relations, but I hope that the Minister will provide clarity and proper consultations so that, when we come to the finalised guidance and regulations, those issues will be very clear. The Minister will not be surprised to hear that, as in the earlier group, we are still hoping for that bit of clarification on the German Stiftungen and others represented by the kinds of organisations that the Stiftungen are—those that operate within a public policy and political sphere but are not directly linked to the Government or governing political parties although they are, by definition, political in their nature. I am sure that the Minister will respond to that when he winds up.

Like the noble Baroness, Lady Noakes, we have a number of scars on our back from legislation where we have tried to do heavy lifting in this Chamber to improve Bills. I tabled a number of amendments in Committee highlighting the concern that what had been brought forward was an unworkable scheme; I think we are now looking at a workable scheme. That is important for the security of our country.

I particularly welcome the draft registration forms, about which I had raised concerns in Committee. I am very pleased that the Minister will be having an active consultation. I am delighted that there will be an updated impact assessment. While the Minister said that that is required of the Government, in previous Bills some excuses have been made for impact assessments not to be updated, so I am very pleased about that. And on the draft regulations, as I said, I am delighted.

As I said on the earlier group, the Minister has been true to his word. I have just one final favour to ask of him. Given that I have been rather successful with colleagues in securing some concessions on this Bill, could he have a word with other Ministers, just to say that “Purvis is not always wrong”? Sometimes, we can do our job in this place; we can make the Government’s job a bit better and make unworkable schemes workable. I commend the Minister for how he has approached this so far.

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[Lord Sharpe of Epsom (Con)]

If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.

[Lord Beith (LD)]

Has the noble Lord quite grasped the significant value of the ISC? I speak as someone who used to be on it. One aspect is its value to the Prime Minister, who gets a detailed assessment of aspects of security in circumstances where nobody else can, and he alone can do something about it. It is also an important guarantee to parliamentary colleagues in both Houses that things that cannot be disclosed are being examined by people whom colleagues trust, and that is very important in order to have some confidence that there is oversight going on.

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble Lord. I certainly get it, and I hold the ISC in great respect, including the noble Lords in this House who are members. As I have said, the Justice and Security Act requires the Prime Minister to read the report before it is published. He gets an unredacted version, so he sees the full picture, and I have committed to take back the House’s concerns about attending the committee, via my noble friend Lord True.

If I may, I will turn to the tier 1 investor visa route, and I am afraid that I will have to repeat a number of things that I said in my opening remarks. The review of visas issued under the route took place relatively recently. A Written Ministerial Statement on 12 January set out the findings of that review, which reviewed visas issued between 2008 and 2015. That included that it had identified a minority of individuals connected to the tier 1 investor visa route that were potentially at high risk of having obtained wealth through corruption or other illicit financial activity. The Statement represented the Government’s substantive response to the commitment to undertake that review and publish its findings.

I am aware that the noble Lord, Lord Wallace, would have preferred that the published review included more information about specific individuals. I agree with his remarks about protecting our democracy and transparency. However, we have had to act responsibly in regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border and the vital work of our law enforcement agencies. I think that those are perfectly reasonable points to have made in regard to the tier 1 investor visa.

I appreciate that I have not given as fulsome answers as all noble Lords would like, but in light of the answers that I have given, I request that noble Lords do not press their amendments.

National Security Bill

Lord Beith Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

Moved by

[Lord Beith]

65: Clause 30, page 22, line 30, at end insert “when carried out in support of and with the authority of the Security Service, the Secret Intelligence Service or GCHQ”
Member's explanatory statement
The purpose of this amendment is to clarify that any immunity from prosecution conferred by this Clause does not extend to the activities of the Armed Forces in general, but only to those activities carried out in support of the Intelligence Agencies.

[Lord Beith (LD)]

My Lords, the amendment to which I will speak was designed to limit the scope of the immunity which the Bill originally proposed to activities in support of the intelligence services, rather than extend it right across the Armed Forces. However, we now have a change, which I will come to in more detail; we are no longer discussing an immunity, thank goodness, but a statutory defence.

Intelligence gathering is difficult, and in the world of intelligence it is quite difficult to avoid breaking the law sometimes. When you are dealing with a hostile state or terrorist organisation, trying to get information from it which it does not want you to have can be quite complicated. There are ways of dealing with the issue, such as a public interest decision by prosecutors not to press a charge, or the expectation that such a charge would not be pressed. That needed to be backed up by authorisation at the highest political level for action which could be politically embarrassing or worse. No such authorisation should be given to torture, rendition to torture or other serious international crimes.

In the Bill, the Government presented us with a blanket immunity, precluding prosecution and unsupported by any specific ministerial authorisation, with no exclusion of torture or other egregious offences. So I strongly supported the suggestion made by my noble friend Lord Purvis, which has now been adopted by the Government, to strike out Clause 30 and replace it with a statutory defence based on the existing domestic provision. That is government Amendment 66 in this group. It is a lot better than the original Clause 30, but still raises some of the same questions.

First, will there be any change to the system of ministerial authorisation at Secretary of State level for activity which might be covered by this clause? That ministerial authorisation is a very important part of the system and its absence would be very damaging. Clearly a general immunity dispenses entirely with any need for it; I was extremely worried about that consequence. Some of the decisions which have to be taken are quite political in character; if an agency were discovered doing something contrary to the law of another country, as well as to our own, very serious political embarrassment could result. So it is in many ways a political decision, and there should be a process by which it can be made.

Secondly, why are we using the National Security Bill to confer a statutory defence not just on intelligence activity, but on any action which is

“the proper exercise of a function of the armed forces”?

In other words, we are creating a new defence for actions on the battlefield, or in a counter-insurgency operation, in areas in which international law is potentially involved. This has very significant consequences for those who break it.

When I first examined the original clause, it seemed to me that the Government were trying to embrace, within an immunity, those members of the Armed Forces who were engaged in intelligence work alongside the three civilian agencies. This would include military intelligence, both uniformed and civilian personnel—now, of course, I think that more fully recognises that the fourth pillar of UK intelligence operations, the military intelligence itself, is brought within the purview of the Intelligence and Security Committee. But I expected that the Government were trying to cover other Armed Forces personnel deployed to assist the intelligence agencies, which they do in a variety of ways. My Amendment 65 was designed to limit the coverage to those groups. But it appears, from the more explicit drafting of the Government’s new clause, that they intend the statutory defence to apply to any proper exercise of the functions of the Armed Forces. I find it surprising that we should attempt so fundamental a change in the law governing the Armed Forces on a tail-wind from a piece of national security legislation.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.

The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.

My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.

I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.

A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.

[Lord Beith (LD)]

I put it to the noble Lord that this is not a formality. The point of the Prime Minister meeting the committee is that it can draw attention to failings or problems that it cannot publicly disclose. The only route by which those failings or problems can be brought to account is by direct contact with the Prime Minister.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who spoke in this debate on Clause 30, the Serious Crime Act 2007 amendment. Before getting into the detail, I very much thank the noble Lords, Lord Beith, Lord West, Lord Ponsonby and Lord Purvis, and the noble Baroness, Lady D’Souza, for their amendments tabled in advance of today’s proceedings. I also thank the noble Lords, Lord Anderson and Lord Carlile, who have consistently shared their time and expertise with me and my team, across a range of national security matters.

I also extend my gratitude to the Intelligence and Security Committee, which recently took the time to write to the Home Office on this measure and cast a keen and critical eye, with officials, over the Government’s amendment tabled for today. I carefully noted the comments of the noble Lord, Lord West, as did my right honourable friend the Security Minister, who sat on the steps when he made them. I will obviously make sure that we reflect on that internally. I say to the noble Lord, Lord Coaker, that my noble friend the Leader of the House heard his comments, and I am sure he will reflect them back to the Prime Minister, but I am not responsible for the Prime Minister’s diary, so I cannot go further than that at this point. However, we will return to this subject in group 12, when the ISC MoU will be debated.

The Government’s shift in approach on the SCA amendment reflects our maintained commitment to ensuring that individuals working for UKIC and the Armed Forces are protected when conducting their proper activities in service to this country. The Government’s amendment replaces Clause 30 with a new clause that provides a defence for acts that are offences under Part 2 of the SCA by virtue of the extraterritorial provisions in Schedule 4. This defence would apply to those carrying out the functions of UKIC and the Armed Forces in supporting activities overseas; that is, it will be a defence for a person to show that their act was necessary for the proper exercise of a function of an intelligence service or the Armed Forces. I will shortly go into more detail on the Armed Forces, at the behest of my noble friend from the Ministry of Defence, so please bear with me.

As noble Lords will be aware, the current reasonableness defence in Section 50 of the SCA would cover encouraging or assisting crimes domestically. We believe that it is right that this new defence is limited to where UKIC and the Armed Forces are supporting activity overseas. The territorial applicability of this measure is identical to that of the original clause. This is because the acute issue caused by the SCA offences, and therefore justification for this amendment as presented to the ISC, relates to support to key international partners’ activity overseas.

The defence provides UKIC and the Armed Forces with more reassurance than the current reasonableness defence, in that the defence is based around the proper exercise of the functions of UKIC and the Armed Forces, rather than the more subjective requirement of proving “reasonableness”. We must remember that the tasks we ask these individuals to undertake, and the operational arrangements we have with our international partners, are ever more complex.

We still do not think it is appropriate that a potentially junior member of the agency or Armed Forces should be faced with the legal burden of proving that their activities were reasonable. Instead, the new defence imposes an evidential burden of proof on the individual to raise the defence. Once the defence has been raised, the legal burden would be on the prosecution to disprove it. It must be remembered that this amendment does not change the position for an individual who acts outside of those proper functions; they would remain liable for any wrongful acts. I believe that this strikes the right balance of providing appropriate protection while also having a clear route by which there can be proper legal consideration of any potential wrongdoing.

Noble Lords will now see an explicit responsibility on the heads of agencies and the Defence Council to ensure that their respective organisations have in place arrangements designed to ensure that acts of a member of their service that would otherwise be an offence under the SCA by virtue of Schedule 4 are necessary for the proper exercise of their functions. To be clear, that means that an act could not be considered within the “proper” exercise of a function of an intelligence service if it does not comply with the “arrangements” set by the relevant heads or the Defence Council.

In addition, the Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—

[Lord Beith (LD)]

On that point, there is a world of difference between the necessary task of a Minister satisfying himself that adequate arrangements exist within an agency—indeed, such arrangements have existed for years—and the Secretary of State being made aware of a potential action and required to approve of it, or prevent it from happening, once he has considered the major political implications it might have. If the system does not extend to that role in relation to individual actions, it will be severely deficient.

[Lord Sharpe of Epsom (Con)]

I will turn to ministerial responsibility if the noble Lord will bear with me. In fact, I am going to do it now. The Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. I have already said this, but there is more to say on the subject. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections and regular scrutiny by the ISC. I will return to this in a second.

I now turn directly to the amendments tabled by the noble Lords, Lord Beith, Lord Anderson and Lord Carlile, which, in short, seek to do two related things: to restrict the activities covered by the defence for the MoD to those which are related to intelligence activities, and—in the case of the amendment of the noble Lord, Lord Beith—to restrict the defence to apply to the MoD only where it acts for UKIC.

I will now speak on behalf of the MoD and my noble friend Lady Goldie, who has sat through this debate. With reference to the Armed Forces, the amendment will enable more effective co-operation with our international partners. It will address operational challenges and remove the personal risk that trusted and dedicated individuals face for carrying out their proper official duties, whether as serving members of our Armed Forces or as intelligence officers within our UK intelligence community.

The amendment is principally concerned with addressing risks arising within an intelligence-sharing context, a primary activity of UKIC. What is perhaps less understood is the criticality of intelligence activity from an Armed Forces perspective, with intelligence sharing often forming a necessary part of wider co-operation with our allies. I assure noble Lords that the amendment is about clarifying the law and removing liabilities which sit onerously with individuals going about their lawful and legitimate duties.

The UK is committed to the rule of law and we would never collaborate or share information with a foreign partner with the intention of supporting unlawful activity overseas, but the SCA amendment does not change that. All aspects of the activities of our Armed Forces will continue to be bound by the relevant law of England and Wales and of international law. There will be no change to the UK’s international legal obligations, including under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and on assisting an unlawful act under Article 16 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts.

This defence will apply only where activity is necessary for the proper exercise of a function of the Armed Forces, and any individual found to be working outside the proper functions of the Armed Forces will remain liable for those actions. Actions not in compliance with the MoD’s robust internal policies and processes, again such as the Fulford principles and the OSJA Guidance, which are designed to ensure that MoD officers do not knowingly support unlawful activity, would not be in the proper exercise of a function of the Armed Forces.

I turn to the amendment tabled by the noble Lord, Lord Anderson. My noble friend Lady Goldie thanks him for the opportunity to discuss this with him. I understand that, because of a technical omission, he may not move his amendment tonight, but my noble friend Lady Goldie has—

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[Lord Sharpe of Epsom (Con)]

My Lords, I go back to what I said to the noble Lord in previous debates on this subject: the activity is restricted to intelligence activity, and as such I believe that the amendment is eminently sensible. However, we cannot accept this current amendment, but the Government will take a very careful look at this apparent gap and will consider the best way to close it.

[Lord Beith (LD)]

My Lords, that was a very interesting final remark from the Minister. I hope it will prove to have some substance, otherwise we are left with legislation that I do not think can be interpreted in the way the Minister describes it. I am quite puzzled, but he has shown willing, so I hope he pursues it. I express my gratitude, particularly to the Minister for the Armed Forces for the care she has applied to this matter—we had a very detailed discussion with her and her officials—and to the Minister who is answering this debate, particularly for the amendment that gets rid of the awful Clause 30 and gives us something that is certainly a significant improvement in its place.

I still have perhaps three areas of particular anxiety in addition to the definitional point that the noble Lord, Lord Anderson, raised about “in support of intelligence”. One is the very fact that we are changing the law about what happens on a battlefield and what happens in a counterinsurgency, apart from the context of the discussion about the use of our Armed Forces in the non-intelligence world. This does not seem to be a good way to legislate. There would have been people involved in and engaged with the legislation if that is what it had been generally about, if it had been applying to the Armed Forces, but that is a rather unsatisfactory feature and not one that we can change at this stage.

I found what the noble Lord, Lord West, said about what happened between the ISC and the Home Office profoundly worrying. It really was disgraceful. I trust the accuracy of what he said and I am sure it can all be correctly documented, but that really is no way to deal with intelligence. Accountability for intelligence in the democratic context has always been quite difficult. The ISC has been developed over decades to provide a good mechanism to deal with that. When it is treated in that manner, it really is very serious and I hope the Minister has recognised that and is determined to go back to the office and really make a noise about this. It is just not acceptable and should not be acceptable to either House of Parliament.

My final worry, which I think can be resolved without statutory means but certainly remains, is the ambiguity about whether Secretaries of State will authorise significant measures that could fall within the scope of the new clause. In my view, it is an essential part of the system that agencies have the backing of a senior Minister when they engage in particularly difficult tasks, and that senior Ministers know what they are doing and are aware of what is being undertaken. If there is a political or legal risk, then Ministers should be aware of it. It is one thing to have a very good internal system—and I believe the agencies have good internal systems now—but quite another to be sure that, at the highest political level, there is both knowledge and authorisation. Frankly, if I were the head of an agency, which I have never been, my instinct would be to try to set up such a system, because otherwise the agency will always get the blame, even when the Secretary of State should have taken responsibility and might even have come to a different conclusion. I think that, over time, we need to make sure that Secretaries of State are sufficiently closely associated, otherwise they drift apart and agencies live in a world of their own. That is not how it should operate. But that, as I say, could be resolved without further legislation if there is determination to resolve it. On that basis, I beg leave to withdraw the amendment.

Amendment 65 withdrawn.

Public Order Bill

Lord Beith Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

Noble Lords understandably have very strongly held opinions about everything that we are discussing tonight. We may disagree on whether a woman should have the right to choose to have an abortion. I know, though, that we all care about free speech and the right of people to be able to express their views, whether we agree with them or not. We must also ensure that women can safely and freely access their legal right to health services. I hope your Lordships will agree that Amendment 45 is a considered and reasonable solution to the issues that have been raised and will support it when it is pressed to a vote later.

[Lord Beith (LD)]

My Lords, I have viewed this issue from a civil liberties standpoint, and that left me rather alarmed at the wording of Clause 9 as it came to us from the House of Commons. It clearly indicated a willingness to extend our laws in ways we have never contemplated before, to the expression of opinion or to influencing people. I was profoundly unhappy with all that wording and not entirely convinced that the matter could not be dealt with using the existing law—as I remember from often quoted cases, it has been. It raised the worry in my mind of where else these principles could be applied—for example, to vaccination clinics if they were picketed by anti-vax people, or to scientific laboratories where animal experimentation is carried out and staff are very fearful of their names and addresses becoming known and of walking into work. These are dangerous things to import into our law but potentially attractive in a number of other situations.

After we tabled amendments in Committee, I met the Minister and Home Office civil servants. I am grateful for that meeting, as it really showed that work and effort was being put into trying to find a clause which was compliant with the ECHR, and which met the genuine concerns of those who brought it forward in the Commons. I am glad to say that the amendment in the name of the noble Baroness, Lady Sugg, has met a number of my concerns. It obviously could not meet my concern that we might have been able to do this by existing law, but it has more clearly directed the focus of the Bill to deal with the perceived harm, which is the intimidation, harassment or unfair pressure. It has not sought to hang measures which go far beyond what can be reasonably justified in a free society on to that definition.

A number of things that the original clause had in it are not to be found in the amendment proposed by the noble Baroness, Lady Sugg. Within the amendment, it is no longer a criminal offence to express an opinion—a concept that absolutely horrified me, and that no one could seriously suggest I would ever vote for given my political background and views. Nor does that amendment interfere with people’s liberties as to what they do in a private house, for example, as it explicitly makes an exception in that respect; nor does it impede directly the work that goes on inside churches if they suddenly find themselves inside a zone because the zone has been brought around them. One of the oddities of this legislation is that the shape of the zone is statutory and cannot take into account any particular local considerations.

The original clause would, in my view, have actually precluded discussions between staff who were arguing whether a late abortion was justified in particular circumstances. The clause was so wide and so dangerous and, again, the things I have listed have been addressed in the amendment in the name of the noble Baroness, Lady Sugg. What was included also was the case of accompanying persons who might be having a genuine discussion with the woman concerned—maybe her sister or her partner—and perhaps taking different views in the discussion that is taking place within that area. That accompanying person provision has been dealt with, and I am glad that it has been. I am sympathetic to the amendments in the name of the noble Baroness, Lady Morrissey, but my main concern is that, when this goes back to the Commons, it goes back in a form in which it is not likely to be defeated. I think we are approaching that point. I would have preferred to have dealt with this in another way and for a review to take place, but we are where we are. It is a difficult judgment for Members of your Lordships’ House—or, at least, I think it is difficult. In my view, the work that has been done to propose this new clause has gone a long way to meet the concerns once you accept that something has to be done. In time, it may be seen to have some defects which would need further remedying, but that has influenced my approach to it.

[Lord Weir of Ballyholme (DUP)]

My Lords, I rise to support Amendments 41, 42, 43 and 44. Like others, I have strong views on the subject of abortion; I suspect I am in a minority position within both this House and this country, but, as a number of noble Lords have said, today’s debate is not about abortion and what position any of us hold on that subject. That is a debate for another day.

I think there are two key points in relation to this piece of legislation which this group of amendments goes to: first, what is appropriate and proportionate in terms of the law, and, secondly, how do we protect everyone’s rights? I agree particularly with Amendment 44 from the noble Lord, Lord Farmer, as it deals with some of the very concerning wording in Clause 9. Also, it is surely a time for a level of pause for thought because, as the noble Lord, Lord Farmer, indicated, thankfully it is the case that we are not in the United States.

The current law regarding abortion has been in place for most of this country for longer than I have been on this earth—just about, if any of you want to guess my age in that regard. It is a question as to why this is suddenly an emergency-type situation. Are we seeing a scale of problems on the ground for which there is not an existing law? I would say that is not the case. We do need to have thoughtful law as to appropriate levels of protection for everyone, and therefore I am very much minded towards the proposal which says “Let us examine what actually the facts are, rather than rushing through a piece of legislation and indeed a clause which applies a particular draconian solution to that”.

On the issue of how we protect everyone’s rights, there are elements within Clause 9 that I think no one in this House could ultimately disagree with. If we are saying, for example, that we want to protect anybody, in any set of circumstances, from intimidation or threats, in every situation, I think all of us would say “Yes, protections need to be there”. Similarly, we would want to protect people from harassment, or from being impeded or blocked from something. Whether it is at a clinic or in any set of circumstances, I think everyone in this House would agree that those protections need to be there. I would question the necessity of this clause on those grounds, because a range of laws already provide that level of protection against threats and intimidation.

Leaving that aside, if that was all that was in Clause 9, there would not be so much of a problem. I appreciate that Amendment 45 softened the language in some regards in relation to this, but according to some of the aspects that are within Clause 9 at present, we are going to criminalise anyone who

“advises or persuades”

or

“attempts to advise or persuade”,

or—perhaps most worryingly of all—

“otherwise expresses opinion”.

If Clause 9 goes through unchanged, we are making an expression of opinion a criminal offence.

The alternative wording in Amendment 45 talks about making it a criminal offence to influence, but surely at the heart of the concept of freedom of speech, and the value of democracy, is the peaceful way in which people try to persuade others of their point of view? It should be a battle of ideas. I indicated clearly that, where that goes beyond the art of persuasion towards any level of threat or intimidation, it is unacceptable and should be criminal, but if we are criminalising expressions of opinion or influence, that is fundamentally wrong.

As I indicated, I have a different view from many within this Chamber on the issue of abortion. But, if we are to defend freedom of speech and the freedom to protest, it is very easy for any of us to stand up and say that we believe in freedom of speech on an issue that we agree with, and it is very easy for any of us to stand up in this Chamber or elsewhere and say that we support the right to protest whenever we agree with that protest. But surely the test within any free society is about defending the rights of people who hold opinions that we disagree with—views which we would find unacceptable.

Public Order Bill

Lord Beith Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, I shall speak very briefly in support of the amendment to remove Clauses 1 and 2 that my right reverend friend the Bishop of Bristol signed. She regrets that she cannot be in her place today. As the noble Baroness, Lady Chakrabarti, said, establishing new offences of locking on and being equipped for locking on have very significant consequences for the right to protest. A few days ago I got an email from a retired vicar in my diocese. He wrote to tell me he is awaiting sentencing: he has just been convicted of obstruction by gluing himself to a road during a protest by an environmental group. The judge has warned him and his co-defendants that they may go to prison. I cite his case not to approve of his actions—which I fear may serve to reduce public support for his cause rather than increase it—but because it clearly indicates to me that the police already have sufficient powers to intervene against those who are taking an active part in such protests. Anything extra, as the noble Lord, Lord Paddick, has just so eloquently illustrated, is superfluous.

[Lord Beith (LD)]

I would like to add to my noble friend’s very precise definition of the drawbacks of this clause. In more general terms, its provisions will lead to situations in which people do not know they are breaking the law and are then accused by the police of doing so. I should have said they do not know they might be breaking the law because of its broad terms. That is a very unhelpful situation should it arise; in my submission, it will arise quite frequently. The sorts of things that are covered by this provision are everyday household items—as my noble friend pointed out—such as glue or a padlock. I referred in earlier debates to the practice of young people of placing a padlock on a bridge—as a sign that they are eternally joined with each other—and throwing the key into the river so that it cannot be taken off again. Imagine the conversation you would have with a police officer when you are trying to explain those circumstances, and he thinks you are on your way to a protest.

National Security Bill

Lord Beith Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 72 seeks to narrow the definition of foreign power threat activity by removing the conduct of those who give support or assistance to individuals, as has been noted.

The definition of foreign power threat activity is a vital part of the Bill, ensuring that the police have the powers they need in support of investigations into state threats offences. It is important that foreign power threat activity has sufficient breadth to allow our law enforcement and intelligence agencies to act where a threat is posed to the safety of the United Kingdom.

There will inevitably be overlap between facilitating on the one hand and assisting or supporting individuals on the other to carry out certain harmful activity under the Bill. However, it is important to retain both elements as they serve distinct purposes. We do not wish to create a gap in the legislation that prevents us being able to act against persons who assist individuals involved in harmful activity, and therefore we cannot accept this amendment.

Both noble Lords implied that it is casting the net too broadly to say that it is not necessary to identify a specific offence or act. However, given the harm that can arise from state threats activity, it is right that the Government can act to disrupt individuals during the early stages of their conduct. Therefore, it will not always be possible to determine the end goal of their conduct. Indeed, in some cases an individual may not have even decided the precise outcome they seek to bring about but, none the less, they have an intention to engage in state threats activity. We therefore want to ensure that the provisions are robust enough to catch criminals in these cases. Waiting until we have a full picture of the act they wish to commit could mean that we have to wait until the act itself is committed.

Additionally, I reassure the House that the reference to

“conduct which gives support or assistance”

under Clause 31(1)(c) relates specifically to conduct falling under Clause 31(1)(a), as is made explicit through the reference to paragraph (a). The Government’s view is that it is implicit that the conduct in question must be support in relation to acts or threats under Clause 31(1)(a), rather than support in relation to any unrelated activity. Thus, the provision does not risk bringing activity wholly unrelated to state threats activity into scope.

[Lord Beith (LD)]

Can the Minister explain that? That is the only thing I can see that is covered by paragraph (c) which is not covered by paragraph (b)—the provision of support or assistance in matters which are nothing to do with the likelihood of the individual being involved in conduct falling within paragraph (a). The Minister has stated that paragraph (c) does not have the effect of proscribing conduct which has nothing to do with the provisions in paragraphs (a) and (b), but I do not know on what he bases that confidence.

[Lord Sharpe of Epsom (Con)]

I base that confidence on the explicit reference to Clause 31(1)(a) in Clause 31(1)(c). With that, I ask the noble Lord to withdraw the amendment.

National Security Bill

Lord Beith Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I follow on from the early comments from the noble Lord, Lord Anderson, about the confusion and difficulties of interpretation of the provisions before us and similar provisions that have created certain headaches, which he referred to, for those who have a responsibility to enforce our laws. I have already complained about the length of this Bill, which has 65 pages and schedules of double that length. Once again, we are not having any thoughts about the users of the Bill, those who have to enforce the provisions of our legislation. I refer to members of the Security Service, the Secret Intelligence Service, GCHQ, police officers, lawyers—perhaps we have no compassion for their difficulties in interpretation, although I do as I am a lawyer—right up to the judiciary. I am sorry if I am bleating again about this problem, but it continues in our legislation and here is another bad example.

Since I am standing up, I shall make a few comments about the provisions in Clause 28. There must be extreme worry that they give Ministers and officials effective immunity from crimes such as targeted killing and torture. Clause 28 blocks accountability for Whitehall involvement in war on terror crimes and, to take a broader view, Clause 28 undermines the UK’s centuries of legal prohibition of torture-related crimes and the UK’s position when criticising other Governments for their crimes. One thinks of the example of the awful murder of Jamal Khashoggi in Turkey. Indeed, looking broadly at these provisions, one is reminded of President Bush’s tenure of office in the United States of America, when certain members of the Justice Department issued papers justifying torture, such as waterboarding and so forth, and saying that it fell within the constitution of the United States. This Bill brings out many of those unhappy memories.

As for the alternatives, we have had the alternative of the noble Lord, Lord Purvis, who said towards the end of his speech that he agreed with my noble friend Lord Vernon, and of course he is quite right about that. Oh, sorry; Coaker is his surname—I am referring to my noble friend Lord Coaker with extreme familiarity, and to his application to remove Clause 28 altogether.

I have not been able to study this in detail, but I am told that the provision proposed by the noble Lord, Lord Anderson—I mentioned this to him outside in the Lobby, just before we came in—does not go far enough to disable sanctuary to Ministers of State and so forth. We are not saying that they are going to commit these crimes, but our law should not permit those down the line to do so. It is all right for the top members of the intelligence services to behave themselves, but then you may not get the same dicipline down the junior line and there is misbehaviour that should be punishable and for which there should not be immunity.

[Lord Beith (LD)]

My Lords, the provisions of this clause and its defects have been set out very well by my noble friend Lord Purvis of Tweed, and there has been some really helpful analysis from the noble Lord, Lord Anderson.

I will just make a preliminary point. The inclusion of the Armed Forces in this provision is wholly inappropriate, simply on the basis that it is the wrong place to deal with what is a much wider problem and raises many other issues—battlefield situations; civilian situations such as we experienced in Northern Ireland, where we have had difficult court cases to deal with; and issues around the proper defence that veterans might wish to advance when involved in contentious matters. To push this into a provision about intelligence services does not seem the right way to deal with it.

One qualification that the noble Lord, Lord Anderson, made was that there may be a case for including actions of the Armed Forces in direct support of the intelligence services, but that is as far as I think it reasonable to go on an issue of wide importance that affects the international reputation of this country. I would rather we were simply dealing with the issue of how we provide the appropriate cover for intelligence services when they have reason to act outside the law. What an easier world it would be if we never asked intelligence services to act outside the law, but that is not possible. The range of things that intelligence organisations can become involved in if they are acting outside the law includes things that, on discussion and explanation, most people would find understandable and acceptable, right through to things that are utterly unacceptable—and which have happened. We think particularly of torture and rendition to torture, which has been our worst recent example. Many people would understand that, if you are dealing with a covert human intelligence source engaged with a terrorist group or some other group of people, at some point you will inevitably get into a situation in which both that source and the officer running that source have questions about what is permissible. You need a mechanism that can handle those things, and we thought we had one.

The provisions we have had until now have worked in a wide range of cases, and the ultimate recourse in difficulty is the decision of the Attorney-General on whether a prosecution is in the public interest. On the face of it, it perhaps looks too limited in some ways but, as I say, for the most part it has worked. There is a case being made now that in some situations it is not sufficient, but to move from that to a general immunity, not restricted in the kinds of illegality it can cover, is worrying and dangerous. To do so by way of a system that does not embody authorisation at its heart is a really serious mistake, and I am glad that the noble Lord, Lord Anderson, touched on this.

It cannot be acceptable for an intelligence agency to be able to act in a way which goes outside the law, without having had to make reference to some democratic authority before doing it, whether by way of a class provision or because of the serious nature of the specific incident or action that is involved. Were we to allow that to happen, which will be the case if this provision goes through unamended, Ministers could then always say “I knew nothing about it—it’s not part of my job to know. I just tell them to get on with it and let me know when they’ve finished”. That situation is not acceptable for either Ministers or the agencies, which then of course take all the blame and have to make political decisions—for example, on whether taking such action is going to cause massive international complications. Should an intelligence agency decide that, or should it be decided at the highest political level? Of course, it leaves accountability out of the system altogether.

The accountability is inevitably limited by the nature of what we are talking about. It may depend almost entirely on the judicial forms of accountability which the noble Lord, Lord Anderson, helpfully described—the commissioners and the tribunal, supported also by the work of the Intelligence and Security Committee, which should be told more about the kinds of operation that have to take place. There are mechanisms to have that accountability, which will only rarely be able to be exercised on the Floor of this Chamber or that of the Commons because of the nature of what is being done, but there should be a process of authorisation.

What I fear out of all this is either Ministers being able to say, “This is all very regrettable, but I knew nothing about it”—when it is not something that Ministers would be consulted about—or a situation in which the service says, “We’d better not tell the Minister because it would be very difficult for him to authorise this”. These are great dangers, and we must not pass legislation which fails to address them.

[Lord Carlile of Berriew (CB)]

My Lords, as is his wont, the noble Lord, Lord Beith, started with a very cogent and important point. The issue about the Armed Forces is both legally and politically distinct. It hardly needs explanation in this Committee as to what those distinctions are, for they are evident to us every time one of those cases is considered.

It is also a pleasure to follow the noble Lord, Lord Hacking, whose return to your Lordships’ House is very welcome to us. He brings a richness of experience on issues which include the quality of the jurisdiction within which we live. Great attention should be paid to the point he made about the way in which our jurisdiction should retain its fundamental values.

In the provisions suggested by the Government in the Bill, I am afraid that I see the words “double standards” above the mirror every time one looks at them. Immunity is inimical to our system of law—full stop. Take the Khashoggi case as an example. I am not suggesting for one moment that we in this country would do anything quite as bad as that murder, nevertheless there could be other outrages committed. If we look at the Khashoggi case and the way that the country that committed that outrage has brushed it under the carpet of immunity, we see how dangerous it is to go down this slippery slope. I will not say a great deal more, but it is a particular pleasure for me to be able to take, as it were, the role of junior counsel to my noble friend Lord Anderson. He opened these amendments with superb and supreme clarity, in my view, and I would only muddy the waters if I said too much more.

I want to make a couple of other points, though. It seems to me that the existing involvement of the Secretary of State in at least some of the decisions to which we are referring does much more than give cover or protection to the individuals who might commit the acts complained of. It shows that political responsibility is taken for those acts, and it is real political responsibility because that Secretary of State is almost always accountable to the other place and will have been elected to it. Misleading actions on the part of, heaven forfend, any Secretary of State could have very serious repercussions in our democratic polity.

--- Later in debate ---

[Lord Beith (LD)]

The Minister has repeated several times his reference to the Armed Forces, but, up to now, always in the context of support for intelligence organisations’ activities. It would be helpful if he could clarify—he is nodding; I think he is indicating that he might do so—whether the inclusion of the Armed Forces is intended to confer the immunity on their general range of activity or is intended to be confined to their support for the intelligence agencies.

[Lord Sharpe of Epsom (Con)]

The noble Lord has pre-empted me by about a second. A number of noble Lords have asked why the Armed Forces are included, including the noble Lords, Lord Purvis, Lord Anderson, Lord Beith, Lord Carlile and Lord Coaker. The Ministry of Defence collaborates with a diverse array of allies and partners, with intelligence sharing often forming a key part of such efforts. The Armed Forces also work closely with the UK intelligence and security community, helping to protect the UK from myriad threats overseas. The protection provided for in Clause 28 seeks to ensure that where our Armed Forces collaborate and provide authorised operational support with international partners, as with UKIC, support can continue without exposing individual staff or officers to personal risk of criminal liability. I hope that answers the question to the noble Lord’s satisfaction.

[Lord Beith (LD)]

It would answer the question if the clause was so defined as to limit the extent of the immunity to acting in support of the intelligence agencies. However, as I read it, it does not do that.

[Lord Sharpe of Epsom (Con)]

I will continue, but I will come back to that, if I may.

I want to return to the question asked by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Hope, seeing as we are talking about the application of this, and also to the point on torture. There will be no change to the UK’s other domestic and international legal obligations, including those under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international obligations on assisting an unlawful act, which is Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. I hope that is unequivocal enough.

Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

Lord Beith Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord German (LD)]

My Lords, we support these regulations, but I have a number of questions to ask the Minister and would like the whole House to reflect on the way regulations of this sort are dealt with by the House.

Early in January, there will be a debate on two reports from this House on the way in which secondary legislation is dealt with by Parliament, particularly the House of Lords. This particular set of regulations—what I am about to say has no effect on them—come under the enhanced affirmative procedure, which provides for regulations being placed in a draft form so that Parliament can assess them and then request the Government to make changes in summary. They would then bring forward amendments to it. In this set of regulations such a requirement was not in place, because the committee that looked at them, of which I am a member, did not make any recommendations about changes that might be required.

However, there are two points in respect of the way that Parliament deals with these matters. The first is that when the enhanced affirmative procedure is required, there is no specification as to which committee of this House will look at them. I will raise that matter in January, but we perhaps need to consider it. At the moment, the Secondary Legislation Scrutiny Committee looks at them, but not necessarily so: it is simply because there was nobody else. In the other place, it is “other committees” that look at this procedure, which is quite strange.

There is no question that, because there is no recommendation from the Secondary Legislation Scrutiny Committee, this procedure would have to form the amendment. It is very important that we have that opportunity to make changes to the secondary legislation; it is otherwise a take-it-or-leave-it procedure. A detailed discussion has been going on in this House about this, as we find it very strange for a Parliament to give such power to the Executive without having the opportunity to properly scrutinise and make appropriate changes.

I would like to ask the Minister some questions. First, which bit of the EU law, which resulted in the High Court’s decision, was problematic? This was a compendium case taken to the High Court, in which the Government defended themselves. This was one of several elements, and the Government were defeated on this element on the basis that they were breaching that EU law. Is the Minister satisfied that the EU law itself is appropriate and will therefore not necessarily need to be changed? It provides some fundamental rights, particularly against what people call the snoopers’ charter.

My second question concerns the operation of the OCDA. It is rather strange that the Minister and his counterpart in the other place talked about the OCDA being able to deal with these matters only during opening hours. It strikes me as being rather like a pub: you have opening hours, you have to place your order, and you cannot put anything in if the doors are closed. The question therefore arises: if you are applying to the OCDA during opening hours, how long would it take to give an answer? Clearly, the issue of understanding and defining what is urgent is very important. Having a definition that says that it is urgent only if it is closing time or they are gone would not be wholly appropriate. I understand the urgent nature of the legislation, but perhaps the Minister could describe how long the OCDA would take to provide an answer in ordinary circumstances where there is not such urgency. With those two questions, I am pleased to support these regulations. I hope that we can delve more into the process in January.

[Lord Beith (LD)]

My Lords, perhaps I might ask the Minister a couple of questions arising out of this. First, am I right in thinking that, to satisfy the court judgment, we must pass these regulations before the beginning of January? Perhaps he could clarify that. Secondly, looking in more detail at the position of the Security Service in particular in dealing with organised crime, I think I am right to say that the only change made by these regulations to satisfy the court judgment is that the urgency procedure would be able to address serious crime communications bids only if there is a matter of urgency, otherwise they would need to go through the normal process.

What slightly puzzles me about that is that I would expect the Security Service, which makes an enormous contribution in dealing with serious crime, to work in close conjunction with the police and, presumably, the National Crime Agency. Would it not be the police leading many such investigations? Would they not themselves be in a position to make the urgent request for communications data? I ask that simply for clarification, not out of any criticism of the fact that the Government have implemented the court’s decision.

Clearly, this restriction will not apply to other areas in which the intelligence agencies work. They will be able to make their own applications on their own initiative, even if it is not an urgent case, because it is within their core areas of activity. But when it comes to serious crime their responsibilities are shared with other bodies, which might be expected to take a lead on the requirement to use communications data.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for his opening comments. He has outlined what the statutory instrument does. These changes come as a result of the High Court ruling in June this year in the case of Liberty v the Secretary of State for the Home Department and the Secretary of State for the FCDO.

This SI will allow for the internal authorisation of the acquisition of communications data solely for serious crime purposes in urgent situations, as prescribed by Section 61A of the Investigatory Powers Act 2016. I understand that parts of the wider case were dismissed. However, the High Court ruled in favour of Liberty on one key point—namely, deeming it to be unlawful for the security services to obtain individuals’ communications data from telecom providers without having prior independent authorisation in certain circumstances.

In preparing for this debate, I read the blog of Neil Brown, who says he is an internet, telecoms and tech lawyer. He commented:

“I suspect, absent an appeal, there will be a tweak to the Investigatory Powers Act 2016, to provide for independent authorisation of requests by security or intelligence agencies before obtaining communications data, retained under Part 4 Investigatory Powers Act 2016, for the applicable crime purpose.”


This SI is indeed the tweak he refers to. He goes on:

“While important, this decision is unlikely to have a material impact on telecommunications operators, whether it applies to all communications data or only communications data retained by a telecommunications operator under Part 4. This is because it relates to what happens ‘behind the scenes’ before a Part 3 authorisation or notice is served on a telecommunications operator. The impact of a Part 3 authorisation or notice has not changed, nor has the obligation to provide data in response to a notice. I suppose that it might have an impact in the short term on the volume of requests, if OCDA”—


the Office for Communications Data Authorisations—

“is to have an increased workload—presumably, if that is the case, there would be a plan to increase OCDA’s staffing.”

My questions for the Minister arising from those comments are, first, does he believe that Neil Brown is accurate in his assessment that there is likely to be a lack of impact on the telecommunication operators through this SI? Secondly, is there a plan to increase the OCDA’s staffing if necessary?

We welcome the Government’s corrective action through this SI. We recognise that there needs to be an appropriate balance between our civil liberties and the fast-changing threats posed by serious and organised crime.

National Security Bill

Lord Beith Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, one of the considerations of the kind referred to by the noble Lord, Lord Carlile, is, of course, a fairly familiar debate parallel to this one which is about the economic well-being of the United Kingdom. Many of the powers exercised by security services can be exercised to defend the United Kingdom from physical threat, but they can also be used to defend the economic well-being of the United Kingdom. I have always been worried about the potential growth of that term, not its actual use. It is very easy to think of things that perhaps ought not to attract intelligence activity but which affect the economic well-being of the United Kingdom. The achievement by a particular firm of a particular contract in competition with another firm is a simple example.

We have some experience of trying to deal with this, and to move to an even wider definition of United Kingdom interests seems to me to open the door to criminal cases being mounted with serious potential penalties in circumstances which Parliament will not have envisaged, except in this short debate, when the matter arises in real life. I can see the intelligence agencies being put at some disadvantage by there being a suspicion that they can do things to favour one group of people over another in the economic interests of the United Kingdom or, as in this case, in the wider interests of the United Kingdom. There is a problem, and I think it needs to be addressed by tighter wording.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.

The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:

“safety or interests of the State”.

But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.

The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.

That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:

“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”


So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.

I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:

“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]


I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.

More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.

Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.

Public Order Bill

Lord Beith Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I support Amendment 142A from the noble Lord, Lord Rooker, and his Clause 30 stand part. He has set out the concerns of the Delegated Powers and Regulatory Reform Committee pretty clearly. Noble Lords will be pleased that I will therefore speak briefly, but I will consider Clause 30 in the political context.

Having been a member of the Delegated Powers Committee for a full term, I am acutely conscious of the increasing tendency of the Government to avoid adequate parliamentary scrutiny of powers delegated to Ministers. Clause 30 is of particular concern, because the delegated powers enable Ministers to increase the already unacceptable police powers under SDPOs. I am very interested in this Bill, even though I have not been able to be involved until now.

As has been extensively debated in this House, it is extraordinary that these orders can apply to people who have not been convicted of any offence and who are not considered to be at risk of offending; that orders can last for up to two years and be renewed; and that a breach of any requirement under an SDPO can lead to six months in prison—for somebody who has not been convicted of an offence. As things stand, such powers do not sit comfortably in a democratic state, in my view. But with Ministers able to extend those powers and further interfere with citizens’ liberties, with only minimal parliamentary involvement—and if, as the noble Lord, Lord Rooker, said, they stick with the negative procedure—this Bill feels much more suited to a country such as Iran or China. I have never said such a thing about a piece of legislation in this House before, but this goes way beyond the pale. A few years ago, Clause 30 would not have been included in this Bill; I just do not think it would have happened.

In the DPRRC’s recent report, Democracy Denied?, we express our concern about

“an increase in the number of occasions on which ministers have been given power to supplement primary legislation by what is, in effect, disguised legislation”

—things such as guidance, which is not a delegated power in the normal sense—that is,

“instruments which are legislative in effect but often not subject to parliamentary oversight”,

being, as in this case, subject only to the negative procedure. That is one way of doing things.

Democracy Denied? expresses further concern about guidance where there is a requirement “to have regard” to it, which the noble Lord, Lord Rooker, also referred to. Although there is an element of choice, a requirement to have regard to guidance carries with it an expectation that the guidance will be followed unless there is a cogent reason for not doing so. In the context of this Bill, such guidance is completely unacceptable.

I very much hope that this House will deal with Clause 30 on Report. Our Delegated Powers Committee recommends that the guidance should be subject to the affirmative procedure. It would probably have been ultra vires for the committee to have gone further than that, but speaking personally, and not in the context of being a member of the Delegated Powers Committee, I really hope that the House considers removing Clause 30 from the Bill at the next stage.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:

“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?

The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.

I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.

But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.

We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.

It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about

“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”

Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.

I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.

National Security Bill

Lord Beith Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, like previous legislation on intelligence and security, the Bill gives significant powers to agencies and Ministers, and it creates new offences. Its purpose is to help protect our citizens, but it is in the nature of these powers and this work that, in order to be effective, much of it must operate in secret, without the visible accountability we would normally expect. Therefore, there are alternative forms of accountability: commissioners, reviewers of terrorist legislation, the courts, the tribunal and the Intelligence and Security Committee, on which I will concentrate.

I was a member of that committee from its establishment in 1994 until 2008. One of the consequences of being on it rather a long time is that this debate is full of people from whom I took evidence during that period, not excepting the noble Lord, Lord West, the only present member of the committee in this House, who made such a valuable contribution to the debate earlier. The committee was created when, until very recently, the existence of the agencies was either denied or not acknowledged, and when the Five Eyes alliance was a secret. The result was that it was a battle—I suspect it still is—to get the level of access essential to the committee doing its job.

I see that job as having two principal purposes: to ensure that the secret parts of government operate competently and efficiently, with adequate resources; and to ensure that they do not do what Parliament would not allow them to do if they were openly accountable. I see it as a reassurance—or an intended reassurance—for Parliament that a representative group of colleagues not beholden to the Executive has sufficient access to the secret activities of government and sufficient independence of judgment to ensure that these objectives are properly met.

As time went on, the committee increased its access, helped by a new generation of agency heads, many of whom recognised that it was in the interests of their service to have effective accountability. We had many battles, particularly with Ministers. Battles continue, including the doomed attempt to instal Chris Grayling as the committee’s chairman. The Justice and Security Act 2013 strengthened the committee’s position, particularly in relation to operations and the important inclusion of defence intelligence in the committee’s remit. This Bill makes no further changes, but it creates further issues and processes for the committee to monitor. I want to focus on two examples of the problems it faces.

The first is the disengagement of Prime Ministers from the committee, which has occurred under several recent Prime Ministers. Because reports are redacted, the normal process of parliamentary and political reaction leading to improvement is severely limited. On some quite major issues, only the Prime Minister has full access to the committee’s conclusions. He or she needs to respond directly in discussion with the committee. Meetings between the committee and the Prime Minister were normal practice after the annual report was produced, and for some special reports as well. They should resume.

The second issue is what appears to be an obscuring of ministerial involvement in difficult and highly controversial issues where the agency’s actions may or may not have specific authorisation from the Minister. That brings me to Clause 28, which has been referenced. It provides a defence that “extra-territorial application” of the Serious Crime Act 2007 would not apply if the action or the assisting or encouraging of that action was necessary for

“the proper exercise of any function of the”

intelligence agencies or the Armed Forces. It is not a new problem, but it used to be dealt with by ministerial authorisation, which would be available only when the circumstances were exceptional and the action proportionate and defensible. As I understand it, ministerial authorisation is not required under this formula—or so it appears. It might not even be sought if it were thought better for the Minister not to know about it. That would be a very unhealthy state of affairs to encourage.

Serious issues may be raised by this provision. They range from very minor breaches of local law in intelligence-gathering right up to rendition resulting in torture. We should not have a situation in which the relevant Minister can claim that they were not fully consulted, briefed or asked for any specific authorisation. The ISC pointed out in its 2010 report on detainee mistreatment that:

“The Guidance is insufficiently clear as to the role of Ministers, and what (in broad terms) can and cannot be authorised. The Guidance should … make clear that Ministers cannot lawfully authorise action which they know or believe would result in torture.”


What if Ministers are never asked because of Clause 28? Ministerial approval, or its refusal, is an essential part of the chain of accountability, and it needs to be maintained and backed up by ISC scrutiny of Ministers’ actions in this area.

This brings me to my experience of the committee’s attempts to establish what submission was made to Ministers on the potentially controversial action outside the United Kingdom involving an intelligence agency. Several of our reports made reference to the stonewalling in this instance, with numerous mutually inconsistent excuses being offered for failing to provide the documentation. I refer right back to the 2006-07 annual report, under the chairmanship of the noble Lord, Lord Murphy of Torfaen, which reported that, at its meeting with the Prime Minister, the committee had been

“told that the matter would be reviewed once again, although this instruction does not appear to have filtered down to those concerned.”

Referring to the Government’s position as “untenable”, the committee revealed how many years it had been submitting this demand for the disclosure of specific documents. Although the paragraphs were published, No. 10 successfully demanded that the number of years the committee had been seeking this documentation would be redacted—and it was.

You cannot serve on the ISC without becoming aware of how many very able and, in some cases, very courageous people work in intelligence agencies and the related organisations on our behalf. Effective accountability in a form which is compatible with the secrecy of their work is in their interests, just as it is in the interests of the citizens they protect. It is also in their and our interests that the legislation they work under is fit for purpose. As noble Lords have indicated so far in this debate, there is considerably more work to be done to ensure that this Bill meets that test.