National Security Bill

Debate between Lord Marks of Henley-on-Thames and Lord Murray of Blidworth

Committee stage
Wednesday 11th January 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.

I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.

The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

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

My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.

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[Lord Murray of Blidworth (Con)]

It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.

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

My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.

There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.

I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.

If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase

“necessary in a democratic society”.

Everything else is subject to that in the qualification.

National Security Bill

Debate between Lord Marks of Henley-on-Thames and Lord Murray of Blidworth

Committee stage
Wednesday 21st December 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, government Amendments 52 to 59 are minor and technical, and bring consistency across the police powers in the Bill by aligning Schedule 2 with equivalent provisions in Schedules 3 to 5.

The amendments serve several purposes. First, they ensure that applications made under Schedule 2 for production orders and explanation orders may be made without notice to a judge in chambers in England, Wales and Northern Ireland, or to a sheriff in chambers in Scotland. This means that, in cases where it could harm an investigation, an application may be made without notifying the defendant. For example, the police may require a production order to obtain evidence from a person suspected of preparing to conduct espionage. Notifying them of the application in advance may result in the destruction, concealment or alteration of that evidence.

Secondly, the amendments ensure that a production order made under paragraphs 3 or 4 of Schedule 2, or an explanation order made under paragraph 8, has effect as if it were an order of the court. This means that if a person fails to comply with the requirements of the order, they can be treated as being in contempt of court, which is a criminal offence punishable by up to two years’ imprisonment or an unlimited fine. Failing to comply with a production order or explanation order can impede a state threats investigation. To avoid damage to such an investigation, it is crucial that provision is made to hold to account those who choose to disregard these orders. This approach mirrors that of the account monitoring orders under Schedule 5 of the Bill and the equivalent production order power in terrorism legislation.

Finally, Amendments 56 and 57 simplify the way that the term “judge” is defined in Schedule 2, aligning it with the definition in Schedules 3 to 5. The amendments do not change the meaning or interpretation of “judge”; they just ensure the drafting is the same across the schedules.

I ask noble Lords to support the inclusion of these amendments.

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

My Lords, I am grateful to the Minister for that explanation. As he has explained, these amendments make provision for applications for production and explanation orders to be made without notice to a judge in chambers. The amendments also make it clear that the orders should take effect as if they were court orders, so that disobedience would be treated as contempt of court.

We of course accept that such orders should be sought and obtained without notice, where necessary; we would expect that, generally speaking, it would be so necessary, because, as I think the Minister pointed out, a warning that application was going to be made for such an order would encourage the persons holding the material to hide it or other evidence concerned or to concoct explanations and provide false support for such explanations. If the orders are made without notice, the person is caught unawares and the orders are more likely to be productive. We also accept that disobedience should be punishable as contempt of court, simply in order to give the orders teeth, which they ought to have.

However, I add one general point. These production and explanation orders are quite draconian in nature and represent a significant intrusion on privacy and liberty. We accept that the conditions set out in the Bill for making these orders are tightly drawn and that, if those conditions are met, the orders are justified. However, it is important—I am sure the Government accept this—that those applying for these orders, and judges scrutinising these applications, will need to be astute to ensure that the conditions set out in the legislation for the orders to be made are fully met.

National Security Bill

Debate between Lord Marks of Henley-on-Thames and Lord Murray of Blidworth

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

It would be the case only if those three tests that I have just described are met for the purposes of the offence in the Bill. So it would have to be that the information was protected, that the person ought reasonably to know that, and that its disclosure was prejudicial to the safety or interests of the UK. I imagine that will be the topic of some debate in the context of the hypothetical example that the noble Lord mentioned. It also has to be done with the intention to benefit a foreign power. I cannot see that, in the hypothetical situation the noble Lord mentioned, that issue realistically would arise because the combination of these tests means not only is the proposed offence proportionate but an appropriately high bar has to be met to bring a prosecution under this clause. The Government therefore consider that the definition of protected information is justified and cannot accept the proposed amendments. I invite the noble Baroness, Lady Ludford, to withdraw her amendment.

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

Following up on my noble friend Lord Purvis’s question, would it not probably be in the interests of Canada in the example he gave to expose wrongdoing on the part of the Government of the United Kingdom? The Government of the United Kingdom might define the interests of the United Kingdom in accordance with government policy in a way which was inimical to the interests of Canada and the offence would still be committed.

[Lord Murray of Blidworth (Con)]

I find the hypothetical example that the noble Lord postulates hard to follow, because it seems difficult to envisage a situation where a prosecutor could conclude in those circumstances that there was a prejudice to the Government of the United Kingdom and a benefit to the Government of Canada, and that the other elements were present. It seems a most unlikely scenario.

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[Lord Murray of Blidworth (Con)]

I note the noble Lord’s remarks. I am not entirely sure that I follow the logic, but I will study Hansard carefully and take it back to the department.

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

My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.

Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—