National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we of course support the overall aim of the Bill. We also support the overall aims of the part of the Bill these amendments seek to address. The noble Baroness, Lady Jones, introduced this group, for which I am grateful. She said that she is the mother of a journalist; I am the father of a journalist.

[Baroness Hayter of Kentish Town (Lab)]

Same one?

[Lord Ponsonby of Shulbrede (Lab)]

No; I cannot respond to that gallantly, can I? I will plough on.

Interestingly, my son recently completed a master’s in journalism at City, University of London. He told me that the public interest part of the journalism course was the least attended, partly because there are fewer jobs in it, which I thought was interesting and worth reflecting on. It is a very important part of any journalist’s work, but it is not where the majority of students choose to study. I thought that was an interesting observation.

The amendments in this group relate to defining a foreign power for the purposes of its activity in the UK. The noble Baroness, Lady Jones, moved her Amendment 66A, which would ensure that journalists and civil society are not wrongly included. This debate could have spread over to the group we will discuss on Monday on the foreign influence registration scheme and how that affects businesses, universities and political parties. In a sense, we will revisit a lot of these issues. Nevertheless, noble Lords have made points that will bear repeating, because they can be repeated in that context.

The noble Lord, Lord Marks, tabled similar amendments to create exclusions in certain instances. Amendments 67 and 69 would expand the definition to include corporations working on the behalf of foreign Governments. It is worth reflecting on the Government’s previous inconsistent approach to Huawei in 5G networks, and their lack of understanding of the risks. I believe that this underlines a need for a more coherent strategy. Serious questions remain following the 2020 announcement that Huawei would be removed from UK 5G networks, which we believe was long overdue, about why it was given the go-ahead in the first place. The Huawei case was sadly illustrative of how, in the past decade, the Government have allowed our national security to become an afterthought, creating risks to it. We on this side of the House believe that the Government need to invest in homegrown alternatives to end our national dependence on high-risk vendors.

My noble friend Lady Hayter made a number of very interesting points about political parties, which were picked up by other noble Lords in the debate. I would be interested to hear the Minister’s answer to the points she raised.

The noble Lord, Lord Black, referred to the letter in the Times today to which he was a co-signatory. The noble Baroness, Lady Stowell, also spoke about the potential chilling effect of the Bill’s provisions as they are currently drafted. They both spoke about the importance of a public interest journalism.

The noble Lord, Lord Wallace, made a point that I think will be repeated on Monday but is well worth repeating. It is the problem of overreporting. That is a theme that has run through all the briefings which I have received and that I am sure all noble Lord have received. It a fear in the university sector, the business sector and political parties, and literally hundreds of NGOs are also concerned about this matter—but that is something that can be talked about on Monday, as I have just mentioned.

When the noble Lord, Lord Purvis, summed up, he put his finger on the main problem with this section of the Bill, which is defining the anomalies of political parties, whether they are in government or not, or are part of coalitions or are opposition parties, and the many sorts of relationships which all political parties have internationally and how that works with the points made by the noble Lord, Lord Black, about the importance of public interest journalism, and how that is a very international approach, often dealing with leaked information and illegal information, and how journalists are to be protected in pursuing that valuable work. So this is a complex area. I am sure the Minister will, as usual, be very careful in his answer, but I hope he retains an open mind, as he did on the previous group when we were considering issues raised in this Committee.

[Lord Sharpe of Epsom (Con)]

My Lords, I again thank all noble Lords who have participated in this debate. Amendment 66A seeks to exclude journalism and civil society activity from the foreign power condition unless the conduct is instigated by or is under the direction or control of a foreign power. I acknowledge the intention of the noble Baroness, Lady Jones of Moulsecoomb, to protect legitimate activity from being criminalised under the Bill with this amendment. However, the Government do not believe that the Bill criminalises legitimate activity and, as such, it is our view that this amendment is unnecessary.

The Committee will be aware that the foreign power condition provides a single and consistent means by which a link between a person’s activities and a foreign state can be drawn. Meeting the foreign power condition is not in itself wrong. It becomes relevant when the other elements of the offences to which it applies are met. As such, the Government do not believe there is a risk to those who engage in legitimate acts, such as journalism or forms of civil society activity.

Turning to the specifics of the amendment, we know that those with hostile intent seek to hide their activities under the appearance of legitimacy, and this amendment could therefore create a gap in our ability to prosecute such individuals. This amendment would mean that an activity carried out with the financial or other assistance of, in collaboration with, or with the agreement of a foreign power would not meet the requirements of the foreign power condition. As a consequence, where a state threat actor posing as a journalist has been engaged in harmful activity which is an offence under the Bill, they would not commit an offence even if we could show that they were receiving specific funding in relation to that activity from a foreign power. This would produce an unwelcome effect whereby those seeking to cause harm to the UK could pose as journalists or members of civil society groups or operate through proxies in order to make it more difficult to be prosecuted.

The Government understand that journalists and those conducting civil society activity can be acting wholly legitimately when receiving funding from a foreign power or working in collaboration with it. However, the other requirements for offences to be committed mean that those legitimate acts would not be captured. In answer to my noble friend Lord Black, I can be clear that this Bill targets wrongful activity from states, not whistleblowing —but we will be coming back to whistleblowing later in today’s session. I also hope that those comments reassure my noble friends Lord Black and Lady Stowell and, of course, the noble Lord, Lord Faulks.

I now turn to Amendments 67 to 71 on the meaning of foreign power, which were tabled by the noble Lords, Lord Marks of Henley on Thames and Lord Purvis of Tweed. The noble Lords have tabled an amendment to remove from the definition a political party which is the governing political party of foreign Government. The inclusion of governing political parties addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities are being carried out on the direction of the ruling party or the Government. We know all too well that states seeking to exert their influence or cause harm to the United Kingdom will do so through a number of different vectors, and we do not wish to create a gap in our legislation which state actors could exploit.

National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

It is too remote because the conduct is so far removed from the support or assistance as to make it effectively impossible to prosecute. It is too vague because there is absolutely no indication of what support or assistance to the relevant individuals is the mischief at which this is aimed. Is it simply supplying a meal or housing, or support or assistance in connection with the conduct? There is nothing effectively to connect the support or assistance to the conduct at which this provision is aimed. This is an important provision because it is the threshold to the exercise of very wide-ranging powers in the clause and the rest of the schedules, so we say it would be far better without paragraph (c). I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this is another JCHR-recommended amendment, ably spoken to by the noble Lord, Lord Marks. Its effect is to narrow the definition of foreign power threat activity by removing giving support and assistance to a person involved in offences under the Bill. The reason for the amendment is that the support and assistance become illegal if unrelated to espionage activity. As the noble Lord explained, its effect does not alter the lines which include facilitating such offending under subsections (1)(a) and (1)(b) of the relevant clause. His objection to paragraph (c) was that it does not make sense and is too vague. I take on board the legal points and his examination of the English in that paragraph, but the real point of this is to provoke a debate and discussion, to narrow the definition and encourage the Minister to explain more fully what is meant by the definitions set down in the Bill.

[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.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.

[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.

Police: Appointments in PCC Offices

Lord Ponsonby of Shulbrede Excerpts

Wednesday 21st December 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for her perspective. Of course, I will take those points back, but I will again robustly defend the process that she put in place: I think it is working.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Government cannot continue to sit on the sidelines on this issue. The noble Lord, Lord Lexden, has repeatedly raised his concerns and the Government have chosen to sit on their hands. The Minister said that the regulations exist and are being followed, but is he satisfied with them? The current situation undermines the police in Leicestershire and the position of PCCs in general. Does he think the regulations need to be changed?

[Lord Sharpe of Epsom (Con)]

I certainly agree with the noble Lord that the current set of circumstances surrounding this individual case are absolutely disturbing. However, the regulations are still being followed and it would be entirely inappropriate of me to comment on an individual case.

National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I found this a fascinating short debate. It caused me to reflect on my time in this House, which has been a few decades now. Over 20 years ago, I remember sitting in on debates on treason in the Council of Europe, covering the way it would be addressed and the appropriateness of the death penalty within council member states. There were similar debates, although the debates regarding treason have evolved over those decades.

I thank the noble Lord, Lord Bethell, for raising this issue. He referenced the Policy Exchange paper; obviously, thinking is developing in this area, so it is appropriate to have this debate here in Committee. I want to pick up the last point made by the noble and learned Lord, Lord Hope, about the impact of the word “treason” and whether that actually deflects from the purpose of trying to fill the gap in the legislation identified by the noble Lord, Lord Anderson.

I listened to all noble Lords who spoke so interestingly in this debate. The noble Lord, Lord Carlile, made a point about the labels put on particular words and how that may influence juries, as in the example he gave. It caused me to reflect on when, as a magistrate, I was asked to convict somebody of a terrorism offence, which does not happen very often in magistrates’ courts. This particular terrorism offence charge was for graffiti on the Tube. The words used caused me and my colleagues to reflect on the appropriateness of that charge. I think the defendant pleaded guilty to that offence, so all we were doing was sentencing, but we had exactly that discussion about the appropriateness of words in particular contexts. I can see the argument that “treason” is so emotive that it could indeed affect juries’ likelihood of getting convictions.

As I said, this has been a very interesting debate. I have to say to the noble Lord, Lord Bethell, that some very serious points have been made against his amendment. Nevertheless, there is sympathy that there is a gap in the legislation, which may be filled in other ways.

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

My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a fascinating debate on a fascinating subject. I thank my noble friend Lord Bethell for introducing Amendment 37A on treason in his name and that of the noble Lord, Lord Faulks. I will now explain why the Government cannot accept the inclusion of this new clause in the Bill.

As noble Lords who are interested in this subject will have noted, the Government are looking closely at the issue of treason, as stated by the Secretary of State at Second Reading in the other place. The Government have been reviewing the case for and against reform of the UK’s treason laws and that review has not yet concluded. What we can say is that the UK has extensive terrorism laws—the “bristling arsenal” mentioned by the noble Lord, Lord Anderson—which protect the safety of the UK and its citizens from forms of terrorism which might be considered treasonous. However, it would be correct to assert that treason law is outdated and in need of reform in light of the growing threats from foreign state actors. To answer the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, the Bill provides a suite of measures for where somebody assists an enemy; it just would not be called treason.

I understand the significant history regarding the evolution of treason in the UK. Because of this, arguments have been made in this House and outside that an offence of treason goes further than criminal offences in relation to terrorism and state threats. Treason acknowledges the duty that a citizen has not to betray their state and many consider that a reformed, modernised treason offence would stress the importance of this through a specific criminal offence, reaffirming the bonds of citizenship that we have to the UK and to each other.

This amendment and others relating to treason have been proposed in previous Bills, but considering the role of treason in modern society is a substantial undertaking and one that we are looking at very closely. I acknowledge that this amendment and others seek to address concerns regarding the lack of a usable modern treason offence in the UK, so we welcome debate on this important topic.

Obviously, I reassure the noble Lords, Lord Bethell and Lord Faulks, and others that the Government do take this issue seriously and will listen carefully to the views offered by all noble Lords. However, as noble Lords may know, the Government are currently considering options for a formal review of this issue, including the possibility of the Law Commission conducting a review in this area. This area is complex, as the noble Lords, Lord Carlile and Lord Purvis, so eloquently explained.

I therefore thank my noble friend once again for his amendment but ask him to withdraw Amendment 37A while the Government’s review is ongoing.

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

Lord Ponsonby of Shulbrede Excerpts

Tuesday 20th December 2022 Lords Chamber

[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.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who participated in this short debate for their considered views on the regulations. To go back to where I started, it is vital that the public have confidence in the discharge of the important powers contained in the investigatory powers regime and that these organisations can carry out their statutory duties to keep us all safe.

The noble Lord, Lord German, asked me about the relevant pieces of retained EU legislation or case law that pertain to the High Court decision. These particular pieces of law are: the Parliament and Council directives—I shall not go into the numbers as there are a lot of them—as implemented in the UK by Parliament in the Privacy and Electronic Communications (EC Directive) Regulations 2003; Privacy International v the Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for the Home Department —again, a load of numbers which I will not bother repeating; and a third one which is in French, and I am afraid my pronunciation powers prevent me having a go.

National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I rise to support my noble friend and have added my name to these amendments. I apologise to the Committee that I was not present at Second Reading. The Minister knows that I was in Malawi supporting the launch of a parliamentary programme and explaining to our colleagues in Malawi the benefit of line-by-line scrutiny of legislation, which I know the Minister will be relishing over these coming days in Committee. As my noble friends indicated at Second Reading, and as my noble friend has indicated today, we take threats to our country very seriously, and we will work constructively with the Government in the scrutiny of the Bill.

I was struck by the remarks of the former head of the SIS, Sir Alex Younger, when he gave evidence to the Public Bill Committee in the Commons and said that the need to address the changing threats was in front of us. He said:

“What I would call grey threats … often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason. My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; cols. 11-12.]


In many respects, it is that grey space that we are seeking to address. I understand the Government’s challenge ahead but, as my noble friend indicated, casting the net so widely without a sharp mesh, I am not sure we will have the kind of security the Government are intending for us to have in this area.

This will be very apparent when we get to Part 3, when it comes to foreign interference in the registers, and other parts. I know the Minister will be in listening mode for a lot of Committee, but I hope he will consider pausing at that part of the Bill for further consultation, because what was apparent at Second Reading—many other noble Lords have, I am sure, received representations from a wide variety of groups, as I have—is that more consultation on that part of the Bill is necessary. Pausing that and bringing it back for the economic crime Bill may be an appropriate way forward. That is a debate we are yet to have, but I just wanted to give the Minister foresight of the case we are making.

As my noble friend indicated—and I defer to his legal knowledge and that of others with extensive legal knowledge who will be participating in Committee—I am struck that because of the Government’s choice not to reform the Official Secrets Act 1989, we will have two competing offences with two contradictory defences. Under this Bill, as my noble friend indicated, anyone who discloses protected information is committing an offence. In the 1989 Act, if an intelligence officer or former intelligence officer discloses any information relating to security or intelligence, they can be imprisoned for up to two years.

Under this Bill, anyone disclosing protected information to a foreign power or a body under the authority of a foreign power faces life imprisonment. However, as my noble friend indicated, in Section 1(5) of the Official Secrets Act 1989 there is a form of defence:

“It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.”


There is no equivalent in this legislation, and I would be grateful if the Minister would outline in very clear terms why.

Part of the rationale given by the Minister in the House of Commons was that the difference between this and the Official Secrets Act is that with this, for any prosecution, three tests have to be met. I suspect we will hear quite a lot in Committee about the three tests. The Minister, Stephen McPartland, indicated that the three tests for someone to be prosecuted under this part of the Bill were,

“conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power.”—[Official Report, Commons, National Security Bill Committee, 12/7/22; col. 80.]

But “harmful activity” and “protected effectively” are not specified in the Bill and “benefits a foreign power” is not necessary in Clause 29.

Because of the breadth of Clause 29, in some areas it is opaque. For example, does someone have to prove objectively that they did not know they were providing a service to a foreign power because they were providing it for an authority of a power? That means that the objective test, on a subjective element under this clause, is problematic.

The Minister in the Commons was not clear with regard to what the three tests are, and Clause 29 is broad. It would therefore be preferable for there to be a far more objective approach, as there is in the 1989 Act, rather than what is in this Bill. On that basis I support the amendments in my noble friend’s name.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendments in this group, tabled by the noble Lords, Lord Marks and Lord Purvis, intend to tighten the scope of offences in Clauses 1, 2, 3, 4, 5, 12, 15 and 29. This is achieved in these amendments by leaving out

“or ought reasonably to know”

from the relevant clauses, meaning that an offence is committed under these clauses only if the person

“knows … that to be the case.”

The practical effect of these amendments is therefore that offences are committed only when a person knows that their actions are damaging. Given that the offences in the Bill could carry significant sentences, as we heard from the noble Lord, Lord Marks, the Committee is right to probe to what extent a person must know that they are committing such an offence, especially as it will otherwise be up to the courts to determine whether a person ought reasonably to have known that they were committing the offence.

However, it is not unusual for offences to be committed when a person ought reasonably to know. There is a recent example of this, which includes the Criminal Justice and Courts Act 2015. I was recently googling it, and it seems that the Act was passed by the coalition Government.

Further to this, if an offence is committed only when a person knows it to be the case that their actions are damaging, it could be difficult to get a successful prosecution. None the less, it is right and helpful that the Committee should ask the Minister to expand on the points we have heard in this short debate.

As the noble Lord, Lord Marks, said, juries often decide on the state of somebody’s mind when an action is committed, and the decision as to whether the defendant is guilty or not guilty can easily turn on their perception of the state of the person’s mind. The noble and learned Lord, Lord Hope, spoke about the difference between knowledge and imputed knowledge. As he said, it would indeed be helpful if the Minister could expand on the level of imputed knowledge that may be expected to secure a conviction.

The noble Lord, Lord Purvis of Tweed, reminded us of the complexity of dealing with “grey space”, as he referred to it. This is an opportunity for the Minister to try to clarify the situation so that prosecutions can be appropriately brought and reasonably thought to have secured an appropriate conviction.

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

My Lords, I thank noble Lords for their broad support for the Bill and the noble Lord, Lord Marks of Henley-on-Thames, for introducing these amendments.

The test that a person

“knows, or ought reasonably to know”

the effect of their conduct recurs throughout the offences and measures in Part 1 of the Bill. Failing to include an element of objectivity in this test would risk seriously undermining the offences and not criminalising behaviour for which we consider individuals should be culpable. Those conducting state threats activity are likely to be skilled at their tradecraft and will be adept at hiding their activities from our intelligence and law enforcement agencies. It is important that we do not hinder our ability to prosecute in these cases.

We consider that knowledge is an appropriate threshold for these offences and the foreign power condition. However, we believe it is also right to include constructive knowledge in these provisions. Given the seriousness of the offences to which this test applies, it is essential that an element of objectivity is included to ensure that offences can still be prosecuted where individuals are unjustly claiming not to have known the relevant consequences or circumstances. It is, of course, right that those who could not have seen those consequences or circumstances should not be criminally liable under these offences.

I think it is helpful at this point to draw noble Lords’ attention back to the 1911 Official Secrets Act, which we are replacing with this Bill. The offences under that legislation cover certain actions, such as obtaining information, by a person

“for any purpose prejudicial to the safety or interests”

of the United Kingdom. Those offences require a no-fault element to be proved in relation to the prejudice to the safety or interests of the state. The proposed amendments to Clauses 1, 4 and 12 contain the same requirement for prejudice to the safety or interests of the United Kingdom, but, importantly, and as recommended by the Law Commission, introduce a subjective fault element. We agree with the Law Commission that these offences should contain a subjective fault element. Crucially, the offences would not capture a person who genuinely could not reasonably have known the effect or nature of their conduct.

Perhaps I might provide a hypothetical scenario of how the proposed amendment could affect the foreign power condition in Clause 29. It is possible that an individual is unaware that they are working for an undercover foreign agent. The noble Lord, Lord Purvis of Tweed, made a very good point about the grey area in which much of this activity takes place. Let us imagine that the security services tell that individual that the person they are working for is, in fact, a foreign agent but the individual refuses to believe it despite clear warnings. At this point, it would be reasonable to make that individual culpable should they continue activities at the behest of the foreign agent, whereas it might prove difficult to successfully prosecute the individual if knowledge had to be proved.

To be clear, the individual in this example would still need to meet all the other tests in any given offence to be charged with that offence. Meeting the foreign power condition is not in itself wrongdoing.

The same logic applies to other amendments tabled. In Clauses 3 and 15, I am sure the whole House would agree that it is not right that an individual should escape liability when they reasonably should have known that their conduct could assist a foreign intelligence service or that they were receiving a benefit from a foreign intelligence service. A purely subjective test would make these offences very difficult to successfully prosecute.

Constructive knowledge is applied by the courts in other circumstances and the Government are confident that this test is appropriate. There will be a range of culpability between those who have actual knowledge and those who should have known, but that is something that is appropriate for sentencing rather than conviction. I hope that goes some way to answering the question put by the noble and learned Lord, Lord Hope—ah, apparently not.

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[Lord Anderson of Ipswich (CB)]

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

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

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


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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

but is

“not subject to a heightened threat profile.”

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

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

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

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

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

My Lords, I thank all noble Lords, and the noble Baroness, for their contributions to this short debate. I also thank the Joint Committee on Human Rights for its report and its close scrutiny of the Bill. I take the opportunity to confirm that the Government’s response has been published today, and I have asked for a copy to be placed in the Library of the House.

The Government consider that limiting what can be captured under “protected information” to specific security classifications, as the noble Baroness’s amendment seeks to, risks creating loopholes within the provision that could significantly undermine the operational utility of the offence. There are already limits to what “protected information” covers: protected information is any information, document or other article, where, for the purpose of protecting the UK’s safety or interests, access to it is restricted, or it is reasonable to expect that access would be restricted. I therefore suggest that there lies the answer to the question posed by the noble Lord, Lord Ponsonby. Moreover, the current definition of protected information would cover instances where information may have been misclassified but would still be extremely harmful if shared widely.

In contrast to the proposed amendment, the current definition of protected information also includes instances where seemingly less sensitive unclassified information or lower-classification information from within a government building or on a government computer system was obtained but could undermine the safety of the United Kingdom if disclosed to a hostile actor.

To answer the question asked by the noble Lord, Lord Marks, this could include the floor plans of a government building or even an organisational chart of a team working within that building. There are many examples of official documents at lower classification levels that may also be harmful if disclosed, such as information about a UK trade deal with another country. It is imperative that this breadth of information is also covered within the definition.

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[Lord Purvis of Tweed (LD)]

My Lords, I too have a question to ask about this. I thank my noble friend for introducing these amendments so comprehensively. My question relates to Clause 3(2)(a) because it is so broadly scoped.

I am fully aware that there are many extremely professional UK-based organisations that provide training, support, advice and consultancy on security matters. In fact, it has become part of an industry for those who used to serve in some of our Special Forces and intelligence industry. By and large, it is done extremely professionally, which is to their credit. However, under the Bill, presumably, all that activity now needs to cease because it is criminalised. A person will commit an offence where

“it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities”,

which would mean training within the UK. Therefore, any consultancy—for example, a privacy sector security concern that trains allies in the Gulf and carries out any of that activity here in the UK—presumably is now liable for 14 years in jail. Can the Minister clarify whether that is the case?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as the noble Lord, Lord Marks, mentioned, there should be a second amendment to go with Amendment 13. There is only one amendment in this group.

Clause 3 means that for the first time it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service. While the clause currently states that an offence is committed when a person engages in conduct that

“it is reasonably possible … may materially assist a foreign intelligence service”,

this amendment would mean instead that an offence is committed only if it is likely materially to assist a foreign intelligence service. The impact of the amendment is that it increases the threshold for the likelihood of whether an action assists a foreign intelligence service, reflecting concerns raised by the JCHR. As the noble Lord, Lord Marks, said, this would be punishable by up to 14 years’ imprisonment, so we look forward to the Minister clarifying why the offence is not more tightly drawn.

The noble Lord, Lord Purvis, raised a very interesting question about the large group of consultants with experience of the security services and forces who provide training to any number of actors across the world, and how they may be caught by this provision. I look forward to the Minister’s answer.

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 13 seeks to narrow the scope of the offence provided for in Clause 3(2). For brevity, I will refer to a foreign intelligence service as a FIS.

The Government reject this amendment because we do not consider it to be necessary. Clause 3(2) provides for an offence where a person engages in conduct which it is reasonably possible may materially assist a FIS in carrying out UK-related activities. Amendment 13 seeks to change this to “likely materially to” assist a FIS. We do not consider there to be a difference between the two terms. I recognise the spirit in which this amendment has been made, to raise the bar for this offence being conducted, but I assure noble Lords that for this offence to apply, a person not only needs to engage in the conduct that it is reasonably possible may assist a FIS but must know, or ought reasonably to know, that it will assist a FIS in carrying out UK-related activities.

To ensure that we do not capture legitimate activity, there are defences in Clause 3(7). Not only will we not criminalise activity conducted in accordance with an agreement to which we are a party—such as agreements with our Five Eyes partners based in the UK—but we will exclude law enforcement and others who are legally obliged under UK law to assist a FIS. That goes some way to answering the question asked by the noble Lord, Lord Purvis. Additionally, where someone with public functions—

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We know that, understandably, a nuclear installation could come under this, but I am curious about why the powers under the Bill to make a prohibited place refer just to the police, not including the Civil Nuclear Constabulary under the Civil Nuclear Police Authority. I am also curious about why, with regard to military and sovereign bases, the Royal Military Police and the Royal Air Force Police are not similarly empowered. If the Minister can clarify those points, I would be grateful.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendments in this group span Clauses 6 to 11 and cover the new offences of

“Entering and inspecting places used for defence etc”.

These clauses are intended to update the prohibited places provisions which fall within the century-old Official Secrets Act 1911. Given that technological developments, such as the use of drones, are providing new methods of accessing protected sites, it is right that the Government are evolving the offences, and it is right that this Committee is probing how these new offences will be implemented.

The 12 amendments in this group are probing and were recommended by the JCHR. They seek to tighten or narrow the offences and definitions. Amendment 34 in the name of the noble Baroness, Lady Ludford, raises the unintended consequences of these provisions on the right to protest and on journalism. This will be a common theme throughout Committee stage, and my Amendment 88, which will be debated at a later date, will consider the implications of later clauses for journalists and civil society.

Amendment 26 in the name of the noble Baroness, Lady Ludford, and Amendments 27, 28 and 30 in the name of the noble Lord, Lord Wallace, raise questions about where prohibited places may be located and probe why they may include any MoD land and why Crown dependencies and overseas territories are excluded. Given the sentences which offences may carry, it is important that the Minister clarifies the type of locations which will be included. As the noble Baroness, Lady Ludford said, the purpose of this group of amendments is to give greater certainty and narrow definitions. She asked the rhetorical question—perhaps it is not a rhetorical question; it is a literal question—of how people will know whether they are in prohibited places.

The noble Lords, Lord Wallace and Lord Purvis, explored quite interestingly why overseas territories are not included within the definitions, and I look forward to the Minister’s answer on that point. The noble Lord, Lord Purvis, asked other questions about who will be informed. If it will not be the general public, will it be local authorities or police forces, and which police forces will it be? The purpose of this suite of amendments is to look at the limits on the extension of prohibited places and at who should expect to be informed about any such extension. I look forward to the Minister’s answer.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions to this short debate. I will first speak to Amendments 23 and 33 at the same time, given the argument is much the same for both. I am happy to provide the clarity sought by noble Lords and, in particular, the noble Lord, Lord Ponsonby.

Harmful activity relating to prohibited places or cordoned areas around military aircraft can take place directly outside the boundaries of a place or cordon. This could include conducting surveillance, such as taking video or photographs of the sensitive place or aircraft, monitoring the activities of staff located at the site or conducting close-range information technology attacks from outside the place. It is therefore imperative that, where the police believe a person to be conducting such activity, they should be able to order them to move away. None the less, recognising that a cordon may be imposed at short notice, it is a defence provided for in the Bill for a person to prove that they had a reasonable excuse for failing to comply with a cordon under Clause 11. The effect of these amendments would be to reduce significantly the ability of the police proactively to stop damaging activity from taking place.

The police guidance that is being developed in collaboration with the College of Policing will provide further advice to forces on the use of powers in respect of an area adjacent to a prohibited place or cordoned area. I can confirm that this is addressed directly in the Government’s response to the JCHR’s report at paragraph 52 and onwards, and I again thank the committee for its close consideration of this Bill.

Amendment 24 adds a requirement that a police officer obtain authorisation before exercising a Clause 6 power. Due to the inherently sensitive nature of prohibited places, and the threats that they face, it is likely that the Clause 6 powers will be used rapidly to prevent serious and harmful activity from taking place—activity that could well jeopardise the safety of those working within the site itself. Policing often requires the judgment of officers to take quick and decisive action to prevent harm and keep the public safe. It is important that we continue to empower our officers to make these decisions where appropriate. Introducing a requirement for a constable to seek approval from a senior officer may add an extra layer of confusion as to when constables may or may not use their powers, potentially allowing harmful activity to be completed before the police can respond. We recognise that every effort should be made to help ensure that these powers are not used in a disproportionate manner, and, as such, we are working closely with the College of Policing to develop guidance that the police should use before exercising the powers granted under Clause 6.

Amendment 25 seeks to provide that it is an offence to fail to comply with a Clause 6 order only if the order was necessary and proportionate to protect the safety or interests of the United Kingdom. The legislation is clear that a constable may exercise a power under Clause 6 only if they reasonably believe that doing so would be necessary to protect the safety or interests of the UK. The Government therefore consider that this amendment is unnecessary. As with any such situation, where it is alleged that a constable has acted outside the scope of their powers, a decision to give the order is rightly open to challenge. As it is an important point, I will stress again that the Government are working closely with the College of Policing on the guidance which should be used prior to making any decision to exercise powers under Clause 6.

On Amendment 26, it is crucial for national security that the UK continues to protect all areas used for defence purposes and by the UK intelligence community. Carving out certain places over others within these categories in the way this amendment proposes risks creating gaps that hostile actors could exploit. It could require the Government to pinpoint their most valuable defence and intelligence sites in order to establish that they are indeed prohibited places and so put these places even more at risk of harmful activity—the very opposite of what the prohibited places regime is setting out to achieve. Moreover, the proposed amendment focuses only on the risk posed by entry to such sites, which fundamentally undermines the protection being given to these sites against a range of harmful activity. It also, in inserting this condition around potential risk, significantly reduces clarity on the face of the legislation as to what constitutes a prohibited place.

I understand the intention behind this amendment, which is to ensure that land that might already be accessible, or where there is not perceived to be a significant risk, is not covered by the provision. I want to assure noble Lords that Ministry of Defence land that can be lawfully accessed by the public and such areas of the British countryside with public footpaths do not need to be excluded, nor do the public need to be given authorisation to be in that area. Therefore, they will not commit an offence under Clause 5. They will be committing an offence under Clause 4 only if the conduct is a specified activity with a purpose that they know, or reasonably ought to know, is prejudicial to the safety or interests of the United Kingdom. It is important we are able to catch such harmful activity, even on publicly accessible land. Ministry of Defence land that can lawfully be accessed by the public is still used by our Armed Forces, often for purposes that are sensitive in nature, and it is critical they should be afforded the protections granted by the prohibited places provisions.

I will address Amendments 27, 28 and 30 together, given they all seek to extend the prohibited places provisions to the Crown dependencies and the wider British Overseas Territories. The Crown dependencies and British Overseas Territories are not a part of the United Kingdom, of course, but self-governing territories with democratic Assemblies able to legislate for themselves, including on national security. Should any British Overseas Territory or Crown dependency consider it necessary to designate prohibited places within their territory, they may make similar provisions in their own legislation.

It is of note that the Government consulted with the Crown dependencies on their inclusion within the prohibited places regime, and they have advised it would be preferred if they looked towards mirroring these provisions under their own law and legislation. It is only right and proper that the United Kingdom respects these decisions. I hope that addresses the point raised by the noble Lord, Lord Wallace. I am sure the Bailiwick of Guernsey will think long and hard about the Alderney breakwater. As the grandson of an Alderney girl, I can tell noble Lords how much that breakwater is a feature of conversation.

It is important to address why the Government have chosen to include land or buildings within sovereign base areas—particularly those of Akrotiri and Dhekelia—in the prohibited places regime. Sovereign base areas are critical for UK defence and have special constitutional status among the British Overseas Territories in that their administrator, who also holds the title of “Commander British Forces Cyprus”, is vested with all the executive and legislative authority. This unique context of the sovereign base areas is precisely why, at their request, we are also including the option to extend the provisions in the Bill to the sovereign base areas. As such, it is right that the UK continues to afford protections specifically to the sovereign base areas through the National Security Bill.

Amendment 29 creates a legislative requirement to inform the public of prohibited places. The safeguards in place within Clauses 4 and 5—namely, that a person must either have a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom or know, or ought reasonably to know, that their conduct is unauthorised—protect those who have entered, or are in the vicinity of, a sensitive site without having any knowledge that they have done so.

The Government agree that, where it is reasonably practicable, every effort should be made appropriately to notify the public of areas designated as prohibited places through the use of signage surrounding these places. However, the Government consider that making it a legislative obligation to notify the public of the location of every site designated a prohibited place is not proportionate, given that Clause 7 already makes public the types of sites that will be prohibited places. Equally, any designation under Clause 8 will set out in law any further types of sites that will be prohibited places. Furthermore, and crucially, there will be a number of sites which, due to their highly sensitive nature, it would be harmful to UK national security if they were publicly declared as prohibited places.

Albanian Asylum Seekers

Lord Ponsonby of Shulbrede Excerpts

Tuesday 13th December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as my noble friend Lord Dubs said, the Labour Party supports the fast-track approach, but I would like to ask about an appeals process. The Minister quoted the Prime Minister saying that there will be protection for modern slavery claims. What about people who are fleeing domestic violence? Will youths be treated the same way as adults through this appeals process?

[Lord Murray of Blidworth (Con)]

The Home Office is increasing the number of staff making asylum decisions in relation to these areas. We have increased the number of asylum case workers by 112%, from 597 staff in 2019 to 1,276 as of this month, and we propose to increase that again next year with a further 500 in March 2023, up to 1,800 by the summer. In terms of the appeal mechanism, as the noble Lord will be aware, Albania is a certified safe country and the mechanism for inadmissibility will apply. Plainly, there is an appeal right out of country and judicial review opportunities in relation to certification decisions.

Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I declare a historical if not a current interest as a Home Office lawyer from January 1996 until the autumn of 2001. I was occasionally and habitually a happy and unhappy inhabitant of the Box.

I agree with—I think—every speech so far in this significant debate. I would go further than some in saying that I was always against this blurring of civil and criminal process from the beginning when, I am sorry to say, Labour did it. I was against ASBOs, CRASBOs, control orders, TPIMs, football banning orders and all the rest, because they were always about lessening criminal due process. That is always the intention when you blur civil and criminal process by way of these quasi-injunctive orders. Whether it is minor nuisance or suspicion of being associated with terrorists, whatever the gravity of the threat, you will catch behaviour without proper criminal due process and then prosecute people for the breach.

Although we do not always agree, I must commend the noble Lord, Lord Anderson of Ipswich, in particular on a devastating critique of this use of copy and paste in my former department. Computers are wonderful things—until they are not. I will not labour the point, save to quote the right honourable Member for Haltemprice and Howden, who has done his best on this Bill in the other place along with Sir Charles Walker, from the Times this morning:

“Serious disruption prevention orders, or SDPOs”—


protest banning orders—

“can be given to anyone who has on two previous occasions ‘carried out activities related to a protest’ that ‘resulted in or were likely to result in serious disruption’”—

which is not defined—

“or even ‘caused or contributed to the carrying out by any other person’ of such activities. This is drafted so broadly so as to potentially include sharing a post on social media or handing out a leaflet encouraging people to go to a protest—even if you did not go on to attend that protest. Those issued with an SDPO can face harsh restrictions on their liberty, including … GPS tracking and being banned from going on demonstrations, associating with certain people”,

et cetera—and the orders are renewable indefinitely, as we have heard.

I am sorry if I have made noble friends feel uncomfortable. Do not think about these measures as they would be employed today. Think about how they could be used on the statute book by another Government, not of your friends and not of your choosing, in 20 years’ time. That is why, in a terrible Bill, Clauses 19 and 20 should not stand part.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.

I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.

My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.

To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.

The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.

In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.

I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:

“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”


Another committee, the Constitution Committee, said:

“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”


The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.

[Lord Sharpe of Epsom (Con)]

My Lords, there are notices to oppose within this group, so it may help if I start by addressing serious disruption prevention orders as a whole, before turning to amendments to the clause. SDPOs will target protestors who are determined to repeatedly inflict disruption on the public or those who simply wish to go about their daily lives. Our experience at recent protests has shown that many police are encountering the same individuals, who are determined repeatedly to inflict disruption on the public.

It cannot be right that a small group of individuals repeatedly trample on the rights of the public without let or hindrance. Yes, many are arrested, but after paying small fines or serving short or suspended sentences, they are free to reoffend. This measure would, following the consideration and permission of the courts, allow for proportionate and necessary restriction or requirements to be placed on individuals to prevent them causing harm.

Additionally, in some cases, individuals choose to not get their hands dirty. They go around the country speaking to young people who are determined to make the world a better place—not to encourage them to study and seek out a career to better the planet, or even to enter politics to enact change; instead, they encourage them to commit criminal offences, alienate the public from their cause and jeopardise their opportunity for a career that will actually make a difference. Why should these individuals, who contribute to serious disruption, be permitted to behave as they do without consequence?

This is why SDPOs are needed, as drafted. They will provide an alternative, non-custodial route to prevent those who have a track record of trampling on the rights of others from doing so. The threshold for the imposition of these orders is appropriately high and I trust our courts to impose them only where necessary.

The noble Lord, Lord Paddick, asked about the HMICFRS conclusion. The report from the policing inspectorate considered only orders which would always ban an individual from protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption. Depending on the individual circumstances, this may mean that the court will not consider it necessary to stop individuals attending protests.

Amendments 128, 129 and 130 would raise the evidential threshold for SDPOs to the criminal standard. I am sure that many who support these amendments also support the civil courts approving injunctions against protesters. These are made on the civil burden of proof against large numbers of people, including “persons unknown”. SDPOs are made against single known individuals.

A number of noble Lords asked why SDPOs can be granted using a civil standard of proof, including the noble Lords, Lord Paddick and Lord Skidelsky, the noble and learned Lord, Lord Brown, and the right reverend Prelate the Bishop of Chelmsford, among others. The use of the civil standard of proof is not a novel concept for preventive orders. Football banning orders, for example, use the same standard of proof to help prevent violence or disorder at or in connection with any regulated football matches. By using a civil standard of proof, courts will be allowed, following due consideration, to place prohibitions or requirements they consider necessary to prevent an individual causing disruption.

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Moved by

[Lord Ponsonby of Shulbrede]

143: After Clause 34, insert the following new Clause—
“Review of sentencing for protest-related offences(1) Within three months of the day on which this Act is passed, the Secretary of State must publish a review into sentencing for public order and protest-related offences.(2) “Public order and protest-related offences” include, but are not restricted to, offences for protest-related activity under—(a) the Criminal Damage Act 1971;(b) the Highways Act 1980;(c) the Public Order Act 1986; (d) the Criminal Justice and Public Order Act 1994;(e) the Police, Crime, Sentencing and Courts Act 2022; andoffences charged following breach of an injunction against protest-related activity, granted under the Protection from Harassment Act 1997.(3) The review must include—(a) the average sentence given where a person commits a public order or protest-related offence, and(b) the proportion of cases in which the maximum available sentence is given for a public order or protest-related offence.(4) The Secretary of State must lay a copy of the review before each House of Parliament.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment is in the name of my noble friend Lord Coaker and the noble Lord, Lord Paddick. It would require the Secretary of State to publish a review into sentencing for protest-related offences within three months of the Act passing. The review must include the average sentence given for any protest-related or public order offence, and the proportion of cases in which the maximum available sentence is given. This will be a quick introduction to the amendment and a series of questions to the Minister.

First, what work has been done to look at current sentencing practice for public order offences before this whole tranche of possible new sentences is introduced? Hundreds, if not thousands, of Just Stop Oil and other protesters have now been arrested and given sentences. Do the Government have any view on the longer-term outcomes of those arrests and sentences? What is the average sentence or fine given for the activity which is already considered unlawful? How often has an existing available maximum sentence been used? What assessment have Ministers made of the impact of the Bill on the number of cases which need court time and how will this be managed, given the extensive backlogs in the existing criminal justice and court system?

The amendment covers a variety of legislation in which relevant powers can already be found, including the Criminal Damage Act 1971, the Highways Act 1980, the Public Order Act 1986, the Criminal Justice and Public Order Act 1994, the Police, Crime, Sentencing and Courts Act 2022, and offences charged following breach of an injunction against protest-related activity, granted under the Protection from Harassment Act 1997. The point is that we have layers and layers of new and old laws on our statute book, and we are yet to be convinced that these additional powers are necessary. It is for the Government to show how much the existing powers are being used and whether there is a real case for adding new powers through this Bill. I beg to move.

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[Lord Davies of Gower (Con)]

My Lords, I thank the noble Lords, Lord Coaker and Lord Paddick, for tabling this amendment. I empathise with the importance of understanding sentencing for criminal offences. However, the Government do not feel that it is necessary to accept this amendment. There are already adequate mechanisms in place to scrutinise sentencing. The Sentencing Council for England and Wales exists to promote greater transparency and consistency in sentencing. It issues guidance on sentencing and is responsible for monitoring sentencing. Its objectives are to promote a clear, fair and consistent approach to sentencing, to produce analysis and research on sentencing and to work to improve public confidence in sentencing.

As a result of the delegation of these functions, it is felt that the Government are not best placed to undertake such a review. I therefore respectfully ask that the amendment be withdrawn.

[Lord Ponsonby of Shulbrede (Lab)]

Well, the Minister did not make any attempt to answer any of the questions I asked. I do not know whether he would undertake to guide me to some government documents that may answer those questions. I think that may be useful, to see whether we might come back to this matter at a later stage.

[Lord Davies of Gower (Con)]

My Lords, in respect of the specific questions, which are more or less covered by the Sentencing Council for England and Wales, I think we will commit to write to the noble Lord, Lord Ponsonby.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

Amendment 143 withdrawn.

UK Asylum and Refugee Policy

Lord Ponsonby of Shulbrede Excerpts

Friday 9th December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Ludford. I thank the most reverend Primate the Archbishop of Canterbury for initiating what has been a remarkable and memorable debate. For his information, I tell him that I emailed his speech to my wife, who is currently on a train to Scotland. She has just read it and she thought it was a magnificent speech.

I also congratulate my noble friends Lady Twycross and Lord Sahota. I wrote down that my noble friend Lady Twycross said she had six former bosses in this House. I also note that because of her role in the GLA, where she is really used to being in the eye of the storm, she seems exceptionally well qualified to be a Member of this House. I also wrote down a comment from my noble friend Lord Sahota, who said that he wants the best deal in the market for our fellow human beings. I thought that was the theme for his whole speech, and I welcome him to our House. Of course I also welcome the right reverend Prelate the Bishop of Leicester, who gave a moving speech about the situation in Leicester and how Leicester has benefited from migrating communities.

It is common to hear, and we have heard it in today’s debate, the proud history of our country in welcoming those in need of safety. We have seen in recent years the generosity of the British people in response to the invasion of Ukraine.

We must always be aware of what we are talking about when we are talking about asylum: we are talking about people fleeing horrors and situations we cannot imagine and making decisions we hope never to have to make for our own families. We in the Opposition need to be careful in our rhetoric and need the Government to be honest and careful in their language too. We must not conflate the economic migration of those travelling without a well-founded fear of persecution with those who are travelling to the UK to flee torture, war and persecution. These people are asking the UK to provide a place of safety. That was the central point of the intervention of the noble Baroness, Lady Prashar. We need responsible and consistent policy-making.

The principles of the UNHCR were referred to a number of times in the debate. They are: strengthening and expediting the decision-making process; ensuring that those without well-founded claims are returned to their own countries; stepping up co-operation with European neighbours; and expanding safe, regular pathways for refugees to travel to the UK that offer real alternatives to dangerous and irregular journeys. The most reverend Primate added to this by introducing a form of triaging system to try to expedite that process. Unfortunately, that is not what we have seen from recent Home Secretaries of the party opposite.

I turn briefly to the issues we have seen under this Government. They have spent £140 million on Rwanda. As my noble friend Lord Browne said, this is just a symbolically tough policy; it has been completely ineffective. We have also not seen a commitment from Ministers on who will not be considered for a flight to Rwanda. We have repeatedly asked whether they will commit not to send people from Ukraine to Rwanda. There is no commitment that, for example, girls and women who have fled here from Iran will not be sent to Rwanda either.

We have a backlog. A number of noble Lords referred to the figures; in November 2022, about 150,000 people were still waiting for an initial decision, with nearly 100,000 waiting over six months. The Refugee Council offered a stark comparison to 10 years ago, when only about 13,000 people were waiting. It must be recognised that the backlog has increased more dramatically than the number of claims and, as mentioned by the most reverend Primate, in some cases by 305% over the last five years. These figures are from the Institute for Government. This is an operational failure at the root of many of the problems that the system faces today.

Of those who travelled by small boat in 2021, only 4% of claims had been processed as of November. The Nationality and Borders Act, far from addressing these problems, baked them in with: first, an inadmissibility clause, which added six months’ delay to cases, but did not deliver safe-return agreements with our closest neighbours; secondly, differentiation policies, which will require some asylum seekers to have their claims repeatedly reassessed, even when they been found to have a well-founded reason to seek asylum; and, thirdly, restrictions on access to family reunion routes, which will push more people into taking extremely dangerous journeys to try to reach their loved ones.

We have seen the scale of safeguarding problems in Manston. We heard from the noble Lord, Lord Kerr, and others about children who have gone missing under the care of the Government and of various local authorities. Can the Minister say something about what action is being taken to try to increase safeguarding for children in this extremely difficult situation?

What will actually make a difference? First, we must speed up asylum decisions so that people are not left in limbo, and so we do not have the spiralling costs of hotels and overcrowding in our reception systems. Secondly, there must be safe routes, including access to family reunion. I have been following what the noble Baronesses, Lady Ludford and Lady Hamwee, have done on that matter. Thirdly, international co-operation is the heart of any solution to the problem. Finally, we must tackle criminal gangs, whose members are the ones acting illegally by taking advantage of people in desperate situations and making profits from misery. However, I did not agree with the solution to that problem which my former noble friend, the noble Lord, Lord Desai, proposed.

It needs to be said that the Labour Party would set up a new dedicated cell in the National Crime Agency to work cross-border to crack down on the criminal gangs, and would seek new arrangements with France, Belgium and other European countries on returns and family reunion. The Labour Party would also fast-track returns to designated safe countries, such as Albania, as other noble Lords have noted. We believe that safe routes are a genuinely powerful alternative to stop people being pushed into the hands of people smugglers, and we think that the Government should look at that route and open their minds to that possibility of reducing the current state of the crisis.

I acknowledge that this is a complex, emotive and fast-changing issue. The Government need to build on the history of receiving people in very difficult circumstances; we have heard many emotive and powerful examples of that over the years. In conclusion, I say to the most reverend Primate the Archbishop of Canterbury that I live in Wandsworth, in south-west London, where we also welcomed many Huguenots. In fact, the coat of arms of Wandsworth Borough Council features the tears of the Huguenots who came to our borough; they are recognised in many parts of the borough, so that is a source of pride for my part of London.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am afraid not.

This country has shown time and again—from those who arrived on the Kindertransport, which the noble Lord, Lord Dubs, raised, and the Ugandan Asians expelled by Idi Amin, to those fleeing the present dreadful conflict in Ukraine—that when people are suffering and they need sanctuary, we step up. We extend the hand of friendship and provide a welcome born of our natural compassion. As the Government have demonstrated, we are committed to maintaining that long and proud tradition through safe and legal routes, and we will continue to do what is right and help those who are in most need.

As my noble friend Lord Cormack referenced in this debate, I completely agree that refugees enrich both our history and our present. At the same time, the public expect us to control migration, uphold our immigration laws and discourage those who would risk their lives by making unsafe and unnecessary journeys to the UK across the channel. As I hope I have made clear today, the Government approach these responsibilities with the greatest seriousness, and that will continue to be the case.

[Lord Ponsonby of Shulbrede (Lab)]

Before the Minister sits down, will he undertake to write to the noble Lords who have spoken in this debate in order to answer the questions that he has been unable to answer because of the length of time he had available?

[Lord Murray of Blidworth (Con)]

I invite noble Lords to ask Written Questions in relation to those points instead.

Independent Cultural Review of the London Fire Brigade

Lord Ponsonby of Shulbrede Excerpts

Thursday 8th December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by reflecting on the huge breadth of experience demonstrated in this short debate. We have heard from my noble friend Lord Davies about his days in the GLC. We have heard from my noble friend Lady Thornton, whose husband John Carr was in the GLC as well, about her own experience of these matters. I recall that my father was an alderman of the GLC at about this time; he would have been aware of these issues as well. A huge depth of experience has been exhibited here. I congratulate my noble friend Lady Chakrabarti on initiating this debate and on the tone in which she presented both the case and the questions for the Minister to answer today.

Some 2,000 firefighters in London have told their story through this report. That is in large part down to Linda Francois, the mother of Jaden. She campaigned for this report. As we have heard, Andy Roe, the commissioner, has said that he will take immediate action as a result of the report. Like the noble Baroness, Lady Pinnock, I hope Linda Francois takes some comfort in the fact that she has played a leading role in the production of this watershed report.

I acknowledge that the London Fire Brigade is primarily the responsibility of the Mayor of London, Sadiq Khan, and our new colleague, my noble friend Lady Twycross, who is the current Deputy Mayor for Fire and Resilience at the GLA. I also acknowledge and fully endorse the findings of the report, as they have been endorsed by Andy Roe, and congratulate Nazir Afzal on chairing the report.

However, the report’s findings should not be news to anyone. The Government have been put on notice time and again about cultural failings in our fire services. In 2015 an independent review in Essex found dangerous and pervasive bullying. In 2018 the inspectorate found failings in culture, values and the grievance process. In 2019 the inspectorate warned of an unchecked toxic culture in many services. In 2021 it found that genuine change was urgently needed.

Elements of this are similar to the recent reports on the Metropolitan Police. I acknowledge that Mr Afzal noted particular differences but, nevertheless, it is unlikely that the conduct identified is isolated to the London Fire Brigade. Does the Minister agree that it is for the Home Office to take responsibility for the conduct failures of fire brigades across the country—the London Fire Brigade as well as other fire services—not to sit back and leave matters to individual forces? What urgent work is the Home Office doing to identify whether similar poor standards of conduct exist in other fire services across the country? My noble friend Lord Davies also asked this.

Are the Government satisfied that the whistleblowing procedures are sufficiently robust and that firefighters and civilian staff feel empowered to report abusive behaviour? That was asked by the noble Baroness, Lady Pinnock, when she questioned the existing procedures. Further, will the Minister commission a fundamental review of national standards and culture in our fire services? Will he agree to publish national statistics on misconduct? Will he commit to national professional standards?

The noble Lord, Lord Greenhalgh, suggested that the Government and the Home Office consult the Fire Brigades Union—a constructive suggestion, I thought. He also pointed out—it was news to me—the differences in approach between the national Fire Brigades Union and the London Fire Brigades Union. I wonder whether that could also be fed into the consultation process.

There were 11,000 fires across London last year. Every day, firefighters run towards danger and keep us safe. We are all grateful for that, of course. While we expect the best from all firefighters in London, we must stamp out this culture of misogyny and racism. I believe that, ultimately, it is for the Government to act.